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THE  LIBRARY 

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REMARKS 


LITERARY  PROPERTY. 


BY  PHILIP  H.  NICKLIN,  A.  M. 

Member  of  the  American  Philosophical  Society; 

of  the    Aslnnolcan    Society,    Oxford; 

and,  of  the  Natural  History 

Society,  Hartford. 


Suum  cuique. 


PHILADELPHIA : 
P.  H.  NICKLIN  AND  T.  JOHNSON, 

LAW   HOOKSELLERS, 
NO.  2,    SOUTH    SIXTH  ST. 


1838. 


Entered,  according  to  Act  of  Congress,  in  the  year 
1838, 

BY  PHILIP  HOULBROOKE  NICKLIN, 

In  the  office  of  the  Clerk  of  the  District  Court  of  the 
Eastern  District  of  Pennsylvania. 


Hesitation. 

To  HENRY  C.  CAREY,  Esquire, 

Member  of  the  American  Philosophical  Society ; 
THIS  LITTLE   VOLUME 

Is  Respectfully   Inscribed, 

AS  A  MARK   OF  THE  HIGH  ESTIMATION  IN  WHICH 

HIS  LABOURS  AS  A  POLITICAL  ECONOMIST,  AND 

HIS  CHARACTER  AS  A  PUBLISHER, 

ARE  HELD  BY 

THE  AUTHOR. 


PREFACE. 


-»>«##«<*■- 


Some  may  think  it  strange  that  an  old 
Publisher  should  undertake  to  write  a 
book,  albeit  a  little  one :  there  was  how- 
ever no  such  undertaking,  but  it  was 
rather  an  overtaking :  it  was  intended  to 
publish  Mr.  Lowe's  valuable  article  on 
Copyright,  with  a  few  prefatory  remarks 
and  a  note  or  two,  but  during  the  con- 
coction of  said  proemials,  the  'writer  was 
overtaken  by  the  importance  of  the  sub- 
ject, which  compelled  him,  inertia  nolente, 
to  convert  a  preface  into  nine  chapters. 

Mr.  Lowe's  article  contains  the  history 
of  Copyright,  down  to  the  year  1819,  and 
its  condition  at  that  time.  Its  subsequent 
1* 


VI  TEEFACE. 

history,  alterations,  and  present  condition, 
may  be  learned  from  the  "  Remarks." 

In  publishing  this  little  volume,  the  wri- 
ter's object  is  to  draw  the  attention  of 
authors,  publishers,  and  readers,  to  a  sub- 
ject that  is  important  to  them  all ;  and  to 
furnish  as  much  information  on  it  as  his 
limited  means  have  enabled  him  to  col- 
lect. 

A  friend  has  just  handed  to  him  a  slip 
of  paper  containing  the  following  informa- 
tion, from  the  best  authority,  which  is 
inserted  here  because  it  came  too  late  for 
the  text: — "The  copyright  of  publications 
"  in  Denmark  is  perpetual.  The  reprint- 
"  ing  of  foreign  works  is  generally  per- 
"  mitted,  with  the  exception  of  those  of 
"  foreign  countries  protected  by  treaty 
"  stipulations,  to  which  Denmark  more 
"particularly  has  acceded  with  the  Cer- 
"  man  states." 

The  subject  of  literary  property  is  un- 


PREFACE.  Vll 

der  investigation  at  present  in  England, 
France,  Germany  and  Prussia,  and  their 
inquiries  will  no  doubt  elicit  much  light: 
it  is  therefore  to  be  hoped,  that  Congress 
will  do  no  more  at  this  session  than  ap- 
point committees  of  inquiry,  to  report  at  a 
future  time,  when  enough  of  information 
has  been  obtained  to  form  a  solid  basis  for 
sound  legislation. 

It  is  a  very  pleasant  thing  for  a  writer, 
after  the  body  of  his  task  is  finished,  to 
gossip  a  little  in  his  preface,  with  his  rea- 
ders, (if  there  be  any  such  predestinate 
unfortunates,)  and  that  cacoethes  is  at 
present  rife,  but  luckily  for  the  saving  of 
paper  and  patience,  the  devil  has  just 
come  into  the  study,  and  holds  forth  his 
inky  paw  for  copy,  and  therefore,  "  void 
"  le  commencement  de  la  Jin  ;"  first  advis- 
ing you,  amiable  reader,  that  the  compo- 
sitor, (perhaps  a  young  radical,)  has  set 
up  the  word  liberty  in  place  of  the  word 


Vlll  PREFACE. 

library,  in  the  seventh  line  from  the  bot- 
tom of  note  on  page  104,  thereby  knock- 
ing the  sense  out  of  the  sentence. 

Philad.  17th  March,  1838. 


CONTENTS. 


CHAPTER   I. 

Petition  of  British  Authors  to  Congress — Ob- 
servations thereon — American  Authors  not 
injured  by  the  republication  of  Foreign  Books 
— The  Authors  of  France  are  situated 
with  respect  to  Belgium  and  Germany,  as 
those  of  Britain  are  with  respect  to  the  United 
States,  and  make  a  similar  request  with  equal  13 
absurdity. 

CHAPTER   II. 

Mr.  Clay's  Report  to  the  Senate,  made  16th 
February,  1837 — Foreigners  can  rarely  avail 
themselves  of  the  security  offered  by  the 
British  Law  of  Copyright — Property  in  a 
material  Book  is  very  different  from  an 
Author's  immaterial  right — The  Republic  of 
Letters  should  have  one  Law  of  Literary  Pro- 
perty— The  Bill  which  passed  the  Senate — 
Observations  thereon.  27 

CHAPTER  III. 

Reasons  against  an  International  Law  of  Copy- 
right at  present — British  Authors  and  British 
Critics — British  Critics  and   American  Au- 


X  CONTENTS. 

thors — British  Market  almost  inaccessible  to 
Foreign  Authors — Washington  Irving,  a  bril- 
liant exception — Marshall's  Washington — 
Our  Market  would  be  glutted  with  Belgian 
Contrefagons,  to  the  mortal  injury  of  Ameri- 
can Industry.  39 

CHAPTER   IV. 

All  mankind  interested  in  the  security  of  literary 
property — Erroneous  views  of  Authors,  Pub- 
lishers, Consumers  and  Legislators — Injustice 
of  the  British  and  American  statutes — A  per- 
petual right  in  Authors  would  produce  good 
and  cheap  books — Not  a  monopoly.  49 

CHAPTER    V. 

Progress  of  Opinion  on  this  Subject  in  various 
Countries — In  Britain — Serjeant  Talfourd's 
Speech  in  the  House  of  Commons — Mr. 
Thomas  Tegg's  Pamphlet  in  Opposition  to 
Authors'  Rights — His  True  Reason — What 
the  Law  takes  from  Authors  for  the  sake  of 
the  Public,  inures  to  the  benefit  of  Publishers.         57 

CHAPTER  VI. 

Opinion  in  the  United  States — Report  to  Con- 
gress in  1H31 — American  Jurist — Report  to 
Congress  in  1837—  Notice  of  Mr*.  Macaulay's 
Defence,  in  Law  Intelligencer.  67 


CONTENTS. 


CHAPTER    VII. 

Progress  of  Opinion  in  France — Law  of  the 
National  Convention — Of  the  Empire — Un- 
certainty of  duration — Opinion  of  Mons. 
Bossangc — Of  the  Journal  des  Debate — Copy- 
right in  Russia — In  Norway  and  Sweden — 
In  the  Germanic  Confederacy — Resolutions 
adopted  by  the  Germanic  Diet,  in  November, 
1837— Prussia.  73 

CHAPTER    VIII. 

A  universal  republic  of  letters  should  be  estab- 
lished— Its  advantages,  pacific,  literary,  intel- 
lectual, religious — Charity  sheuld  begin  at 
home — and  then  may  go  abroad — The  law  of 
literary  property  should  be  uniform  through- 
out the  world — Free  trade  in  books.  83 

CHAPTER   IX. 

Mon.  Bossange's  Suggestions  for  the  Improve- 
ment of  the  Law  of  Literary  Property — 
Author's  Property  terminates  at  the  moment 
it  becomes  available  for  Profit — La  Fontaine 
and  the  Rothschilds — Natural  Death  of  Pirates 
and  Piracy — Conclusion.  89 


Xll  CONTENTS. 

COPYRIGHT. 

By  Joseph  Lowe,  Esq. 

Delivery  of  Copies  to  Libraries.  98 
Term  of  Copyright;  its  successive  variations.  101 
Objections  and  Answers.  102 
Partial  Prolongation  in  1814.  109 
Inquiry  as  to  the  advantages  of  a  farther  Prolon- 
gation. 110 
State  of  Copyright  on  the  Continent.  122 
Inadequacy  of  our  present  term.  124 
Sketch  of  the  proposed  alteration.  125 
Its  benefit  to  Authors.  127 
Its  Benefit  to  Booksellers.  130 
Benefit  to  the  Public.  138 


REMARKS 


LITERARY   PROPERTY. 


CHAPTER    I. 

Petition  of  British  Authors  to  Congress — Observations 
thereon — American  Authors  not  injured  by  the 
republication  of  Foreign  Books — The  Authors  of 
France  are  similarly  situated  with  respect  to  Bel- 
gium and  Germany,  as  those  of  Britain  are  with 
respect  to  the  United  States,  and  make  a  similar 
request  with  equal  absurdity. 

In  February,  1837,  a  petition,  signed 
by  fifty-six  British  authors,  among  whom 
were  stars  of  all  magnitudes,  was  pre- 
sented to  the  senate  by  the  honourable 
Henry  Clay,  asking  the  privilege  to  secure 
copyrights  for  their  works  in  the  United 
Slates,  and  supporting  their  petition  by 
arguments  not  entirely  worthy  of  the  dis- 


14  REMARKS  OX 

tinguished  signers.     The  petition  follows, 
with  a  few  remarks  upon  its  contents. 

"  THE  HUMDLE  ADDRESS  AND  PETITION 

"  Of  certain  Authors  of  Great  Britain,  to  the  Senate 
"  and  House  of  Representatives  of  the  United  Slates, 
"  in  Congress  assembled, 

"  Respectfully  showeth — 

1.  "That  your  petitioners  have  long  been  exposed  to 
"  injury  in  their  reputation  and  property,  from  the  want 
"  of  a  law  by  which  the  exclusive  right  to  their  respec- 
"  tive  writings  may  be  secured  to  them  in  the  United 
"  States  of  America. 

2.  "That,  for  want  of  such  law,  deep  and  extensive 
"injuries  have,  of  late,  been  inflicted  on  the  reputation 
"  and  property  of  certain  of  your  petitioners ;  and  on 
"the  interests  of  literature  and  science,  which  ought  to 
"constitute  a  bond  of  union  and  friendship  between  the 
"  United  States  and  Great  Britain. 

3.  "  That,  from  the  circumstance  of  the  English  lan- 
guage being  common  to  both  nations,  the  works  of 
"  British  authors  are  extensively  read  throughout  the 
"  United  States  of  America,  while  the  profits  arising 
"  from  the  sale  of  their  works  may  be  wholly  appro- 
"  priatcd,  by  American  booksellers,  not  only  without 
"  the  consent  of  the  authors,  but  even  contrary  to  their 
"  express  desire — a  grievance  under  which  your  peti- 
"  tioners  have,  at  present,  no  redress." 

The  third  paragraph,  which  states  that 
English  authors  are  extensively  read  in 
the  United  States,  is  a  refutation  of  that 
part  of  the  first,  which  says  that  they  suf- 


LITERARY  PROPERTY.  15 

fer  in  reputation  from  the  want  of  a  law, 
for  if  an  author's  reputation  does  not  gain 
by  the  admiration  of  millions,  the  word 
has  different  meanings  on  the  two  sides  of 
the  Atlantic  ;  and  so  far  from  injury  being 
done  to  their  property,  the  fact  is,  that 
their  American  fame  is  echoed  back  across 
the  ocean,  and  increases  the  value  of  their 
copyrights  at  home. 

It  is  a  great  mistake  to  suppose  that 
any  part  of  the  sum  that  would  go  to  the 
author,  if  he  were  protected  by  law,  now 
goes  to  the  bookseller.  The  trade  is  free, 
and  therefore  competition  obliges  the  pub- 
lisher to  sell  at  the  very  lowest  price  that 
will  afford  the  necessary  return  for  the 
capital  employed;  and  it  is  in  consequence 
of  this  low  price  that  good  English  works 
have  a  large  circulation  in  the  United 
States,  whereby  the  reputation  of  the 
authors  is  greatly  increased,  and  not  dimi- 
nished as  saith  the  petition.  Raise  the 
price  by  a  copyright  tax,  and  you  dimi- 
nish the  circulation  from  two  thousand  to 
five  hundred,  or  to  nought,  in  proportion 


16  REMARKS  ON 

to  the  amount   of  the  author's   wish  to 
gain. 

4.  "  That  the  works  thus  appropriated  by  American 
"  booksellers  are  liable  to  be  mutilated  and  altered,  at 
"  the  pleasure  of  the  said  booksellers,  or  of  any  other 
"  persons  who  may  have  an  interest  in  reducing  the 
"  price  of  the  works,  or  in  conciliating  the  supposed 
"  principles  or  prejudices  of  purchasers  in  the  respec- 
"  tive  sections  of  your  union  :  and  that,  the  names  of 
"  the  authors  being  retained,  they  may  be  made  respon- 
sible for  works  which  they  no  longer  recognise  as 
"  their  own. 

5.  "  That  such  mutilation  and  alteration,  with  the 
"  retention  of  the  authors'  names,  have  been  of  late 
"  actually  perpetrated  by  citizens  of  the  United  States : 
"  under  which  grievance,  your  petitioners  have  no 
"  redress." 


The  fifth  paragraph  contains  a  very- 
grave  charge,  which  should  not  have  been 
preferred  except  on  credible  evidence ; 
and  the  motives  assigned  in  the  fourth  for 
the  base  perpetrations,  exist  only  in  the 
prejudices  of  the  petitioners.  If  the  allu- 
sion be  to  slavery,  it  was  not  respectful 
to  make  it  to  the  Senate,  in  which  all  the 
states  are  represented  in  their  corporate 
capacities.  But  almost  all  the  British 
books  that  go  through  the  American  press 


fclTERARY  PROPERTY.  17 

are  published  in  the  northern  and  middle 
states,  where  British  opinions  on  that 
grave  topic  are  not  in  disrepute,  and 
where  the  interest  of  the  publishers  would 
not  tempt  them  to  mutilate,  on  such  an 
account. 

English  law  books  are  printed  here, 
and  the  parts  relating  to  tythes,  copyhold 
estates,  and  other  branches  of  law  that  do 
not  exist  here,  are  sometimes  left  out ;  and 
notes  are  added  showing  how  our  law  and 
practice  differ;  but  the  text  is  never  altered; 
and  the  elisions  and  notes  are  carefully 
designated  by  the  American  editor,  who 
is  generally  a  lawyer  of  reputation. 

There  is  not  the  least  inducement  to 
mutilate  English  books,  or  to  alter  them 
in  any  way  without  distinct  acknowledg- 
ment ;  for  they  come  here  with  a  reputa- 
tion already  gained,  and  it  is  an  exact 
copy  which  the  reader  requires,  and  which 
the  publisher  is  obliged  to  furnish. 

6.  "  That  certain  of  your  petitioners  have  recently 
11  made  an  effort  in  defence  of  their  literary  reputation 
"  and  property,  by  declaring  a  respectable  firm  of  Eng* 

2* 


18  REMARKS  ON 

"  lrsh  publishers  in  New  York  to  be  the  sole  authorized 
"  possessors  and  issuers  of  the  works  of  the  said  peti- 
"  tioncrs ;  and  by  publishing  in  certain  American  news- 
"  papers,  their  authority  to  this  effect" 

That  effort  failed,  because  it  was  an 
attempt  to  establish,  in  the  hands  of  an 
English  house  in  New  York,  a  monopoly 
in  the  republication  of  English  books. 
Other  English  authors  have  made  con- 
tracts  with  American  houses,  by  virtue  of 
which  they  have  received  large  sums  for 
the  first  copies  of  various  books.  The  first 
copy  of  Lockhart's  Life  of  Scott  will,  per- 
haps, cost  the  house  which  republishes  it, 
three  thousand  dollars. 


7.  "  That  the  object  of  the  said  petitioners  has  been 
"  defeated  by  the  act  of  certain  persons,  citizens  of  the 
"  United  States,  who  have  unjustly  published,  for  their 
"  own  advantage,  the  works  sought  to  be  thus  protected  : 
"  under  which  grievance  your  petitioners  have,  at  pre- 
"  sent,  no  redress. 

8.  "That  American  authors  are  injured  by  the  non- 
existence of  the  desired  law.  While  American  pub- 
"  lishers  can  provide  themselves  with  works  for  publi- 
"  cation  by  unjust  appropriation,  instead  of  by  equitable 
"  purchase,  they  are  under  no  inducement  to  afford  to 
"  American  authors  a  fair  remuneration  for  their  labours  : 
"  under  which  grievance  American  authors  have  no 
"  redress  but  in  sending  over  their  works  to  England 


LITERARY  PROPERTY.  19 

"  to  be  published,  an  expedient  which  has  become  an 
"  established  practice  with  some  of  whom  their  country 
"  has  most  reason  to  be  proud." 

The  English  books  are  not  unjustly 
republished,  for  by  the  present  defective 
copyright  law  the  English  author  has  only 
a  right  of  use  for  a  term  of  years,  and  that 
limited  to  the  British  empire ;  that  is  the 
reward  for  which  he  writes,  and  no  labour 
is  expended  on  his  work  for  the  benefit  of 
other  nations,  but  it  is  expressly  adapted 
to  the  use  of  his  own  countrymen;  and  the 
merit  of  his  book  is,  in  general,  commen- 
surate with  the  poor  encouragement  and 
imperfect  protection  afforded  by  his  own 
government. 

The  eighth  paragraph  is  a  distinguished 
specimen  of  the  argumentum  ad  hominem, 
and  is  more  supererogatory  than  sincere. 
If  the  desired  law  would  not  prevent  the 
circulation  of  British  books,  it  would  not 
help  American  authors ;  and  surely  the 
petitioners  do  not  desire  a  prohibition. 
The  only  inducement  that  can  make  a 
publisher  buy  a  book,  is  its  possessing  such 


20  REMARKS  ON 

a  value  as  will  insure  a  sale ;  he  cannot 
be  made  to  buy  the  copyright  of  a  bad 
American  book,  because  he  must  pay  for 
English  copyright.  An  American  author 
who  would  go  to  England  to  sell  a  copy- 
right that  he  could  not  sell  here,  would 
display  less  sagacity  than  commonly  falls 
to  the  lot  of  an  American,  even  though  he 
be  an  author.  His  American  fame  must 
first  cross  the  Atlantic,  or  he  and  his 
manuscript  may  stay  at  home. 

The  sale  of  American  copyrights  is  not 
interfered  with  by  the  republication  of 
foreign  books ;  because  the  latter  is  merely 
an  investment  of  capital,  with  a  view  to 
gain  the  common  profit  of  trade,  and  is 
subject  to  the  risque  of  competition;  and 
consequently  the  publisher  would  much 
prefer,  and  does  prefer,  investing  his  capi- 
tal in  American  copyright  books,  in  the 
exclusive  sale  of  which  he  enjoys  legal 
protection,  whenever  such  as  will  sell  are 
offered  to  him.  Authorship  is  heir  to  the 
same  ills  here,  (Hi as  malorum,)  as  it  is  in 
Great  Britain;  and  a  very  large  propor- 


LITERARY  PROPERTY.  21 

tion  of  the  books  that  are  written  do  not 
pay  the  cost  of  paper  and  print.  In  this 
country  publishing  is  not  a  monopoly,  as 
it  is,  (practically,)  in  Great  Britain,*  and 
many  of  our  great  authors  publish  their 
own  books,  charge  a  high  price  and  make 
a  large  'profit  on  a  limited  circulation, 
instead  of  realising  the  much  greater 
amount  of  gain  that  an  experienced  pub- 
lisher would  secure  by  a  low  price  and 
an  extensive  circulation. 


*  In  Great  Britain,  the  business  of  publishing  seems 
to  be  so  close  a  monopoly  as  to  be  retained  almost 
entirely  in  the  hands  of  the  great  booksellers  in  Lon- 
don :  this  is  shown  by  the  following  extract  from  a 
letter  addressed  by  Sir  Walter  Scott  to  J.  G.  Lockhart, 
Esq.  dated  Edinburgh,  20th  January,  1826,  contained 
in  Lockhart's  Life  of  Scott: — "  But  while  I  live  I  shall 
"  regret  the  downfall  of  Constable's  house,  for  never  did 
"  there  exist  so  intelligent  and  so  liberal  an  establish? 
"  ment.  They  went  too  far  when  money  was  plenty, 
"  that  is  certain  ;  yet,  if  every  author  in  Britain  had 
"  taxed  himself  half  a  year's  income,  he  should  have 
"  kept  up  the  house  which  Jirst  broke  in  upon  the  mono- 
" poly  of  the  London  trade,  and  made  letters  what  they 
"  now  are."  But,  alas !  that  breaking  in  upon  mono- 
poly, broke  the  Constables,  though  they  used  a  capital 
of  $1,200,000. 


22  REMARKS  ON 

9.  "That  the  American  public  is  injured  by  the  non- 
"  existence  of  the  desired  law.  The  American  public 
"  Buffers,  not  only  from  the  discouragement  afforded  to 
"native  authors,  as  above  stated,  but  from  the  unccr- 
"  tainty  now  existing  as  to  whether  the  books  presented 
"  to  them  as  the  works  of  British  authors,  arc  the  actual 
"  and  complete  productions  of  the  writers  whose  names 
"  they  bear." 

In  all  religions,  metaphysical,  moral 
and  imaginative  works,  the  republishes 
are  obliged  to  give  exact  copies,  or  the 
books  would  not  sell,  and  the  mutilators 
would  lose  their  customers.  Many  Eng- 
lish copies  of  all  new  works  of  merit  are 
received  in  this  country,  by  public  libra- 
ries, reviewers,  publishers,  and  individuals, 
and  if  the  reprints  were  not  faithful  to  the 
originals,  the  reviewers  and  newspapers 
would  fall  upon  the  publishers  unguibus  et 
dentibus,  and  he  would  not  come  out  of 
the  contest  covered  with  glory,  as  Napo- 
leon's bulletins  did  use  to  have  it.  More- 
over, such  sharp  competition  exists  among 
our  publishers,  that  none  dare  sin  in  this 
way,  for  fear  of  sudden  punishment,  in 
the  shape  of  a  rival  and  correct  edition. 


LITERARY  1'ROPERTY.  23 

JO.  "That  your  petitioners  brjr  humbly  to  remind 
"your  Honours  of  the  case  of  Wultei  Scull,  as  stab  d 
11  by  an  esteemed  citizen  of  the  United  States,*  that 
"  while  the  works  of  this  author,  dear  alike  to  your 
"  country  and  to  ours,  were  read  from  Maine  to  Georgia, 
"  from  the  Atlantic  to  the  Mississippi,  lie  received  no 
"remuneration  from  the  American  public  for  his 
"labours;  that  an  equitable  remuneration  might  have 
"saved  his  life,  and  would,  at  least,  have  relieved  its 
"closing  yw.irs  from  the  burden  of  debts  and  destruc- 
"  live  toils. 

11.  "That  your  petitioners,  deeply  impressed  with 
"  the  conviction  that  the  only  firm  ground  of  friendship 
"  between  nations,  is  a  strict  regard  to  simple  justice, 
"  earnestly  pray  that  your  Honours,  the  representatives 
"of  the  United  States  in  Congress  assembled,  will 
"  speedily  use,  in  behalf  of  the  authors  of  Great  Bri- 
"  tain,  your  power  'of  securing  to  the  authors  the  exclu- 
"  sivc  right  to  their  respective  writings.' 

"  And,  as  in  duty  bound,  your  petitioners  will  ever 
"  pray." 

It  is  probable  that  the  life  of  that  illus- 
trious and  excellent  man,  Sir  Walter  Scott, 
was  shortened  by  the  great  amount  of  men- 
tal labour  which  his  honesty  induced  him 
to  undergo,  for  the  noble  purpose  of  pay- 
ing his  debts ;  legal  debts  created  by  the 
fault  of  others,  no  part  of  which  rests 
upon  Americans.     The  first  publishers  of 

*  "  Dr.  M'Vickar.— Vide  letter  to  the  editor  of  the 
"  New  York  American,  Nov.  19,  1832." 


24  REMARKS  ON 

his  novels  here,  paid  such  a  sum  for  the 
first  copy,  as  would  be  considered  a  hand- 
some payment  to  an  American  author  for 
the  first  edition  of  an  original  novel. 
These  payments  were  made  under  the 
certainty  that  numerous  rival  editions 
would  spring  up  like  mushrooms  in  a 
night,  and  be  sold  at  little  more  than  the 
cost  of  paper  and  print ;  and  it  was  this 
very  cheapness  that  was  the  principal 
cause  of  that  great  circulation  of  Sir  Wal- 
ter's novels  in  this  country,  which  made 
our  people  utter  that  universal  shout  of 
praise  which  helped  to  raise  his  fame 
above  that  of  any  other  writer,  and  no 
doubt  increased  the  value  of  his  works  at 
home. 

That  justice  is  the  best  foundation  of 
friendship  between  nations,  no  one  will 
deny :  but  where  was  justice  when  parlia- 
ment took  from  British  authors  the  perpe- 
tual right  to  their  own  productions,  grant- 
ing them  in  return  a  beggarly  term  of 
years,  and  laying  upon  them  the  unequal 
tax   of  giving  eleven  copies  of  all  new 


LITERARY  PROPERTY.  25 

works  to  certain  corporations ;  no  matter 
whether  the  price  be  one  or  one  hundred 
guineas,  whether  the  edition  be  one  hun- 
dred or  one  thousand  copies.  British 
authors  are  now  asking  relief  at  the  hands 
of  our  government  for  the  injustice  inflict- 
ed by  their  own.  The  absurdity  of  the 
request  may  be  clearly  shown,  by  asking 
them  a  question  which  has  been  propound- 
ed by  a  writer,  (in  the  Gazette  de  France 
of  the  ltfth  November,  1836,)  to  the 
authors  of  France,  who  are  demanding 
an  international  copyright  law  -with  Bel- 
gium and  Germany,  to  prevent  in  those 
countries  the  reprinting  of  their  books : 
he  asks — "  N'est  ce  pas  une  belle  propo- 
"  sition  a  faire  aux  puissances  de  l'Europe 
"  que  de  leur  dire :  A^ous  pouvez  avoir  les 
"  livres  Franoais  a  tres  bon  raarche,  mais 
"  vous  les  paierez  tres  cher  par  respect 
"  pour  la  propriete  littcraire  des  auteurs 
"  Francais,  et  par  contre  nous  ne  vous 
"  oflrirons  rien,  car  nous  ne  reimprimons 
"  pas  vos  livres  !"  Which,  (mutatis  mutan- 
dis,) may  be  translated  as  follows : — "  Is 


26  REMARKS  ON 

"it  not  a  pretty  offer  to  make  to  the 
"  United  States,  to  tell  them : — '  You  can 
"now  have  English  books  very  cheap; 
"but  out  of  respect  to  the  literary  pro- 
"  perty  of  English  authors,  we  would  be 
"  much  obliged  to  you  if  you  will  bind 
"  yourselves  by  law  to  pay  dear  for  them, 
"  although  we  cannot  offer  you  a  quid 
"pro  quo,  for  we  seldom  reprint  your 
"  books?  "  And,  if  British  publishers  were 
obliged  to  pay  for  American  copyright, 
seldom  would  be  changed  to  never. 


'LITERARY  PROPERTY.  27 


CHAPTER    II. 

Mr.  /lay's  Report  to  the  Senate,  made  16th  February, 
187 — Foreigners  can  rarely  avail  themselves  of  the 
seurity  offered  by  the  British  Law  of  Copyright — 
Pnperty  in  a  material  Book  is  very  different  from 
an  Author's  immaterial  right — The  Republic  of  Let- 
tersshould  have  one  Law  of  Literary  Property — The 
Bill  which  passed  the  Senate — Observations  thereon. 

Of  the  16th  February,  1837,  the  Hon. 
Hewy  Clay  made  the  following  Report  to 
the  Senate  of  the  United  States: — 

"  The  select  committee  to  whom  was  referred  the  address 
"ofcer.oin  British,  and  the  petition  of  certain  Ame- 
"  rican  ■wthors,  hits,  according  to  order,  had  the 
"same  under  co mi', e ration,  and  beg  leave  now  to 
"  report : — 

1.  "That,  by  the  art  of  congress  of  1831,  being  the 
"  law  now  in  force  regulating  copyrights,  the  benefits 
"of  the  act  arc  restricted  to  citi/ens  or  residents  of  the 
"  United  States  ;  so  that  no  foreigner,  residing  abroad, 
"  can  secure  a  copyright  in  the  United  States  for  any 
"  work  of  which  he  is  the  author,  however  important 
"  or  valuable  it  may  be.    The  object  of  the  address  and 


28  REMARKS  ON 

"  petition,  therefore,  is  to  remove  this  restriction  as  to 
"  British  authors,  and  to  allow  them  to  enjoy  the  beie- 
"  fits  of  our  law." 

The  word  "  while,"  should  have  ben 
inserted  in  this  clause  next  before  he 
phrase  "  residing  abroad,"  because  our  Itw 
allows  a  foreigner  to  secure  a  copyrght 
as  soon  as  he  comes  to  this  courtry. 
There  is  a  singular  obliquity  in  the  phase- 
ology  of  the  whole  clause,  calculated  to 
mislead  the  mind  of  the  hasty  readc:  in 
the  beginning  it  is  said,  "  the  benefits  tf  the 
"  act  are  restricted  to  citizens,  or  residents 
"of  the  United  States:"  the  clause  con- 
cludes with  saying,  that  the  object  "is  to 
"  remove  this  restrict'on  as  to  British 
"  authors,  and  to  allow  them  to  e^oy  the 
"  benefits  of  the  laws."  Foreign  authors 
are  nut  restricted,  or  restrained  from  enjoy- 
ing the  benefits  of  the  law,  but  can  all 
come  here  and  enjoy  tiem ;  and  herein 
they  are,  (de  facto,  though  not  de  jure,) 
upon  a  par  with  American  authors,  who 
have  found  by  experience,  that  it  is  next 
to  impossible  to  derive  any  benefit  from 


LITERARY  PROPERTY.  29 

copyright  in  Great  Britain,  without  going 
there  in  person. 

2.  "  That  authors  and  inventors  have,  according  to 
"  the  practice  among'  civilized  nations,  a  property  in 
"  the  respective  productions  of  their  genius,  is  incon- 
"  testable;  and  that  this  property  should  be  protected  us 
"  effectually  as  any  other  property  is,  by  law,  follows  as 
"  a  legitimate  consequence.  Authors  and  inventors  aro 
"among  the  greatest  benefactors  of  mankind.  They 
"  arc  oltcn  dependent,  exclusively,  upon  their  own  men* 
"  tal  labours  for  the  means  of  subsistence;  and  are  fre- 
"  qnently,  from  the  nature  of  their  pursuits,  or  the  con- 
"  stitutions  of  their  minds,  incapable  of  applying  that 
"  provident  care  to  worldly  affairs  which  other  classes  of 
"  society  arc  in  the  habit  of  bestowing.  These  consi- 
"  derations  give  additional  strength  to  their  just  title  to 
"  the  protection  of  the  law." 

The  general  scope  of  this  clause  is  excel- 
lent, and  clearly  proves  that  authors  have 
a  property  in  their  works  as  indefeasible 
and  transmissible  as  that  of  the  owner  of 
a  house;  and  consequently,  that  it  is  inex- 
pedient, at  present,  by  an  act  of  imperfect 
legislation,  to  make  it  more  difficult  to  do 
them  complete  justice  at  a  future  day. 

3.  "  It  being  established  that  literary  property  is 
"  entitled  to  legal  protection,  it  results  that  this  protec- 
"  tion  ought  to  be  afforded  wherever  the  property  is 
"  situated.    A  British  merchant  brings  or  transmits  to 

3* 


30 


REMARKS  ON 


"  the  United  States  a  bale  of  merchandise,  and  the 
"  moment  it  comes  within  the  jurisdiction  of  our  laws, 
"  they  throw  around  it  effectual  security.  But  if  the 
"work  of  a  British  author  is  brought  to  the  United 
"  States,  it  may  be  appropriated  by  any  resident  here, 
"  and  republished,  without  any  compensation  whatever 
"  being  made  to  the  author.  We  should  be  all  shocked 
"  if  the  law  tolerated  the  least  invasion  of  the  rights  of 
"  property,  in  the  case  of  the  merchandise,  whilst  those 
"  which  justly  belong  to  the  works  of  authors  are 
"  exposed  to  daily  violation,  without  the  possibility  of 
"  their  invoking  the  aid  of  the  laws. 

4.  "  The  committee  think  that  this  distinction  in  the 
"  condition  of  the  two  descriptions  of  property  is  not 
"just;  and  that  it  ought  to  be  remedied  by  some  safe 
"  and  cautious  amendment  of  the  law.  Already  the 
"  principle  has  been  adopted  in  the  patent  laws,  of 
"  extending  their  benefits  to  foreign  inventions  or 
"  improvements.  It  is  but  carrying  out  the  same  prin- 
"  ciple  to  extend  the  benefit,  of  our  copyright  laws  to 
"  foreign  authors.  In  relation  to  the  subjects  of  Great 
"  Britain  and  France,  it  will  be  but  a  measure  of  reci- 
"  procal  justice ;  for,  in  both  of  those  countries,  our 
"  authors  may  enjoy  that  protection  of  their  laws  for 
"  literary  property  which  is  denied  to  their  subjects 
"  here. 

5.  "  Entertaining  these  views,  the  committee  have 
11  been  anxious  to  devise  some  measure  which,  without 
"  too  great  a  disturbance  of  interests,  or  affecting  too 
"  seriously  arrangements  which  have  grown  out  of  the 
"  present  state  of  things,  may,  without  hazard,  be  sub- 
jected to  the  test  of  practical  experience.  Of  the 
"  works  which  have  heretofore  issued  from  the  foreign 
"  press,  many  have  been  already  republished  in  the 
"  United  States;  others  arc  in  a  progress  of  republica- 
"  tion,  and  some  probably  have  been  stereotyped.  A 
"  copyright  law  which  should  embrace  any  of  these 
"  works,  might  injuriously  affect  American  publishers, 


LITERARY  PROPERTY.  31 

"  and  lead  to  collision  and  litigation  between  them  and 
"  foreign  authors. 

b".  "  Acting,  then,  on  the  principles  of  prudence  and 
"caution,  by  which  the  committee  have  thought  it  best 
"  to  be  governed,  the  bill  which  the  committee  intend 
"  proposing,  provides  that  llie  |  rotcclion  which  it  secures 
"  shall  extend  to  those  works  only  which  shall  lie  pub- 
"  Iislu :d  after  its  passage.  It  is  also  limited  to  the  sub- 
jects of  Great  Britain  and  France;  among  other  rea- 
M  sons,  because  the  committee  have  information  that,  by 
"their  laws,  American  authors  can  obtain  there  protec- 
"  tion  for  their  productions ;  hut  they  have  no  iiitbrma- 
"  tion  that  such  is  the  case  in  any  other  foreign  coun- 
"  try.  Uut,  in  principle,  the  committee  perceive  no 
"  ohjeetion  to  considering  the  republic  of  letters  as  one 
"great community,  and  adopting  a  system  of  protection 
"  tor  literary  property  which  should  be  common  to  all 
"parts  of  it.  The  bill  also  provides  that  an  American 
"  edition  of  the  foreign  work  for  which  an  American 
"  copyright  has  been  obtained,  shall  be  published  within 
"  reasonable  time." 


The  third  clause  is  logically  deficient, 
and  the  conclusion,  (or  shock,)  is  deduced 
from  the  use  of  similar  terms  in  different 
senses.  Ii"  a  British  merchant  bring  to  the 
United  States  a  box  of  books,  the  moment 
they  come  within  our  laws,  they  throw 
around  them,  (the  books,)  effectual  secu- 
rity, and  they  cannot  be  appropriated  by 
any  resident  here  without  paying  for  them : 
and  if  the  author  bring  one  copy  of  a  new 


32  REMARKS  ON 

work,  and  take  out  a  copyright,  no  other 
resident  can  appropriate  to  himself  the 
right  of  publishing  and  selling  the  same 
without  the  author's  permission.  The  pro- 
perty in  a  material  printed  book,  is  a  very 
different  kind  of  property  from  the  author's 
incorporeal  light  of  exclusive  publication. 
Unhappily,  we  are  not  all  shocked,  when 
the  law  not  only  tolerates,  but  requires, 
the  taking  away  from  the  foreign  mer- 
chant who  brings  to  the  United  States  a 
bale  of  merchandise,  one-fourth,  one-third, 
or  one-half  of  its  value,  without  paying  for 
it,  in  order  that  somebody,  somewhere 
down  east,  may  be  able  to  make  a  similar 
sort  of  thing;  and  yet,  mirabile  dictu!  a 
law  is  proposed  to  prevent  us  from  making 
books  like  those  imported  by  the  foreign 
merchant. 

The  last  paragraph  in  the  4th  clause  is 
erroneous,  because  foreign  authors  are 
not  denied  that  protection  here,  which  is 
enjoyed  by  our  authors ;  but  can  obtain 
it  by  residence. 

"Entertaining  these  views,"  the  com- 


LITERARY  PROPERTY.  3.'} 

mittec  have  arrived  at  unexpected  conclu- 
sions in  the  5th  clause.  One  would  think 
that,  if  glaring  injustice  has  been  done  to 
foreign  authors,  its  progress  should  be 
arrested  by  the  new  law,  and  the  copy- 
right property  of  those  books  that  have 
been  republished  here  without  the  consent 
of  the  owners,  should  be  secured  to  said 
owners  in  future.  In  the  last  paragraph 
but  one  of  the  6th  clause,  the  committee 
admit  that  the  republic  of  letters  should  be 
one  great  community,  and  that  a  system 
of  protection  for  literary  property  should 
be  adopted  every  where.  This  is  true ; 
but  such  a  republic  must  have  one  orga- 
nic law,  perpetual,  and  similar  in  its  pro- 
visions for  all  civilized  nations:  this  would 
be  a  glorious  consummation,  the  first  step 
towards  which  would  be  worthy  of  our 
country. 

7.  "If  the  bill  should  pass,  its  operation  in  this  coun- 
"  try  would  be  to  leave  the  public,  without  any  charge 
"for  copyright,  in  the  undisturbed  possession  of  all 
"  scientific  and  literary  works  published  prior  to  its  pas- 
"  sage — in  other  words,  the  great  mass  of  the  science 
"  and  literature  of  the  world  ;  and  to  entitle  the  British 


34  REMARKS  ON 

"  or  French  author  onty  to  the  benefit  of  copyright  in 
"  respect  to  works  which  may  be  published  subsequent 
"  to  the  passage  of  the  law. 

8.  "The  committee  cannot  anticipate  any  reasonable 
"  or  just  objection  to  a  measure  thus  guarded  and 
"  restricted.  It  may,  indeed,  be  contended,  and  it  is 
"  possible  that  the  new  work,  when  charged  with  the 
"  expense  incident  to  the  copyright,  may  come  into  the 
"  hands  of  the  purchaser  at  a  small  advance  beyond 
"  what  would  be  its  price,  if  there  were  no  such  charge; 
"  but  this  is  by  no  means  certain.  It  is,  on  the  con- 
"  trary,  highly  probable  that,  when  the  American  pub- 
"  lisher  has  adequate  time  to  issue  carefully  an  edition 
"  of  the  foreign  work,  without  incurring  the  extraordi- 
"  nary  expense  which  he  now  has  to  sustain  to  make  a 
"  hurried  publication  of  it,  and  to  guard  himself  against 
"  dangerous  competition,  he  will  be  able  to  bring  it  into 
"  the  market  as  cheaply  as  if  the  bill  were  not  to  pass. 
"  But,  if  that  should  not  prove  to  be  the  case,  and  if  the 
"  American  reader  should  have  to  pay  a  few  cents  to 
"  compensate  the  author  for  composing  a  work  by  which 
"  he  is  instructed  and  profited,  would  it  not  be  just  in 
"  itself?  Has  any  reader  a  right  to  the  use,  without 
"  remuneration,  of  intellectual  productions  which  have 
"not  yet  been  brought  into  existence,  but  lie  buried  in 
"  the  mind  of  genius  ?  The  committee  think  not;  and 
"  they  believe  that  no  American  citizen  would  not  feel 
"  it  quite  as  unjust,  in  reference  to  future  publications, 
"  to  appropriate  to  himself  their  use,  without  any  consi- 
"  deration  being  paid  to  their  foreign  proprietors,  as  he 
"  would  to  take  the  bale  of  merchandise,  in  the  case 
"  stated,  without  paying  for  it;  and  he  would  the  more 
"  readily  make  this  trifling  contribution,  when  it  secured 
"  to  him,  instead  of  the  imperfect  and  slovenly  book  now 
"often  issued,  a  neat  and  valuable  work,  worthy  ofprc- 
"  servation. 

9.  "  With  respect  to  the  constitutional  power  to  pass 
"  the  proposed  bill,  the  committee  entertain  no  doubt,. 


LITERARY  PROPERTY.  35 

"  and  congress,  as  before  stated,  has  acted  on  it.  The 
"  constitution  authorises  congress  '  to  promote  the  pro- 
"  gross  of  science  and  useful  arts,  by  securing,  for 
"limited  times,  to  authors  and  inventors,  the  exclusive 
"  right  to  their  respective  writings  and  discoveries.' 
"  There  is  no  limitation  of  the  power  to  natives  or  resi- 
dents of  this  country.  Such  a  limitation  would  have 
"  been  hostile  to  the  object  of  the  power  granted.  That 
"  object  was  to  promote  the  progress  of  science  and  use- 
"  ful  arts.  They  belong  to  no  particular  country,  but 
"  to  mankind  generally.  And  it  cannot  be  doubted  that 
"  the  stimulus  which  it  was  intended  to  give  to  mind 
"  and  genius,  in  other  words,  the  promotion  of  the  pro- 
"  gross  of  science  and  the  arts,  will  be  increased  by  the 
"  motives  which  the  bill  offers  to  the  inhabitants  oi* 
"  Great  Britain  and  France. 

10.  "  The  committee  conclude   by  asking   leave  to 
"introduce  the  bill  which  accompanies  this  report." 


The  7th  clause  merely  shows  that  the 
proposed  bill  would  perpetuate  the  injury 
already  done,  and  now  doing,  to  foreign 
authors,  as  regards  those  works  that  have 
already  been  reprinted,  or  are  now  iu 
progress. 

The  8th  and  9th  clauses  contain  some 
interesting  matters  that  will  be  adverted 
to  before  the  close  of  these  remarks,  fur 
the  purpose  of  sustaining  the  opinions  of 
the  author. 


36  REMARKS  ON 

The  following  bill  accompanied  the 
report : — 

"  A  Bill  to  amend  the  act  entitled  '  An  Act  to  amend 
'  the  several  acts  respecting  copyright.' 
"  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
"  senlatives  of  the  United  States  of  America  in  Con- 
"  gress  assembled,  That  the  provisions  of  the  act  to 
"  amend  the  several  acts  respecting  copyrights,  which 
"  was  passed  on  the  third  day  of  February,  eighteen 
"  hundred  and  thirty-one,  shall  be  extended  to,  and  the 
"  benefits  thereof  may  be  enjoyed  by,  any  subject  or 
"  resident  of  the  United  Kingdom  of  Great  Britain  and 
"  Ireland,  or  of  France,  in  the  same  manner  as  if  they 
"  were  citizens  or  residents  of  the  United  States,  upon 
"  depositing  a  printed  copy  of  the  title  of  the  book  or 
"  other  work  for  which  a  copyright  is  desired,  in  the 
"  clerk's  office  of  the  district  court  of  any  district  in  the 
"  United  States,  and  complying  with  the  other  require- 
"  nients  of  the  said  act :  Provided,  That  this  act  shall 
"  not  apply  to  any  of  the  works  enumerated  in  the  afore- 
"  said  act,  which  shall  have  been  etched  or  engraved,  or 
"  printed  and  published,  prior  to  the  passage  of  this 
"  act :  And  provided,  also,  That,  unless  an  edition  of 
"  the  work  for  which  it  is  intended  to  secure  the  copy- 
"  right,  shall  be  printed  and  published  in  the  United 
"  States  simultaneously  with  its  issue  in  the  foreign 
"  country,  or  within  one  month  after  depositing  as  afore- 
"  said  the  title  thereof  in  the  clerk's  office  of  the  dis- 
"  trict  court,  the  benefits  of  copyright  hereby  allowed 
"  shall  not  be  enjoyed  as  to  such  work." 

If  the  claims  of  the  foreign  authors  be 
well  founded,  the  bill  would  have  been 
more  just,   without  the   provisos.     Why 


LITERARY  PROPERTY.  37 

should  the  act  not  apply  to  works  which 
have  been  etched,  engraved,  or  printed, 
or  published,  prior  to  the  passage  of  the 
act,  so  far  as  to  restrain  persons  from 
'printing  and  'publishing  them  again  after 
the  passage  of  the  act,  but  not  preventing 
the  sale  of  those  copies  that  were  printed 
before  1  All  such  works  as  are  in  course 
of  printing  might  be  considered  as  printed 
and  published,  and  the  restraint  as  apply- 
ing only  to  editions  commenced  after  the 
passage  of  the  act.  Such  a  restraint 
would  enhance  the  value  of  the  copies 
unsold,  and  would  thus  compensate  the 
publishers,  and  the  only  injury  that  would 
flow  from  it,  would  be  a  little  rise  in  price 
that  the  consumers  would  have  to  pay. 

The  last  proviso  would  almost  nullify 
the  law,  as  regards  benefit  to  foreign 
authors.  The  foreign  and  American  edi- 
tions could  not  be  published  simultane- 
ously, unless  two  manuscript  copies  were 
prepared,  or  unless  the  foreign  edition 
were  delayed  a  considerable  length  of 
time ;  and  if  simultaneously  means  on  the 
4 


38  REMARKS  ON 

same  day,  there  would  be  great  difficulty, 
if  not  impossibility,  in  conforming  to  the 
law.  If  the  publishing  be  not  simultane- 
ous, it  must  be  in  this  country  within 
thirty  days  after  making  the  deposite  of  a 
printed  title  of  the  work :  this  indecent 
hurry  may  be  looked  upon  as  a  mere 
mockery  by  foreign  authors,  as  it  would 
either  deprive  them  of  protection,  or 
oblige  them  to  charge  their  works  with 
the  "  extraordinary  expense  which  they 
"  would  have  to  sustain  to  make  a  hurried 
"  publication  of  them,  and  to  guard  them- 
"  selves  against  dangerous  competition."* 

*  See  8th  clause  of  Report,  lines  11  to  14. 


LITERARY  PROPERTY.  39 


CHAPTER     III. 

Reasons  against  an  International  Law  of  Copyright  at 
present — British  Authors  and  British  Critics — Bri- 
tish Critics  and  American  Authors — British  Market 
almost  inaccessible  to  Foreign  Authors — Washing- 
ton Irving,  a  brilliant  exception — Marshall's  Wash- 
ington— Our  Market  would  be  glutted  with  Belgian 
Contrefagons,  to  the  mortal  injury  of  American 
Industry. 

I  shall  now  offer  some  reasons  why- 
there  should  be  no  legislation  extending 
protection  to  foreign  authors  for  some 
years  to  come.  First,  an  immense  amount 
of  capital  is  employed  in  publishing  books, 
in  printing,  in  binding,  in  making  paper, 
and  types,  and  stereotype  plates,  and  print- 
ing presses,  and  binders'  presses  and  their 
other  tools ;  in  making  leather  and  cloth, 
and  thread,  and  glue,  for  binders;  in  cop- 
per plates,  in  copyrights,  and  in  buildings 


40  REMARKS  ON 

in  which  these  various  occupations  are 
conducted.  The  whole  of  this  investment 
is  very  great,  and  is  variously  estimated 
by  experienced  persons,  between  the  limits 
of  thirty  and  fifty  millions  of  dollars;  and 
in  the  opinion  of  the  same  persons,  keeps 
in  comfortable  employment  two  hundred 
thousand  people,  of  whom  fifty  thousand 
are  women  and  children.  It  is  probable 
that  one-fourth  of  the  business  done  by 
publishers  is  in  reprinting  foreign  books, 
and  this  large  portion  of  their  business 
would  be  reduced  perhaps  as  much  as 
nine-tenths,  certainly  as  much  as  three- 
fourths,  if  copyright  be  granted  to  foreign 
books  at  present ;  because  it  would  be  the 
interest  of  the  bookseller  to  print  small 
editions  and  to  charge  high  prices,  as  he 
would  be  protected  from  competition;  and 
such  a  great  reduction  in  the  amount  of 
publishing,  would  disturb  the  whole  amount 
of  capital,  and  produce  incalculable  dis- 
tress. At  this  time  such  a  measure  would 
be  peculiarly  disastrous,  because  the  vari- 
ous trades  in  question  are  just  beginning 


LITERARY  PROPERTY.  4l 

to  recover  from  the  stagnation  produced 
by  the  inconvertibility  of  the  paper  cur- 
rency, and  the  consequent  derangement  of 
the  internal  exchanges.  The  publishers 
would  suffer  least,  and  perhaps  not  at  all, 
for  they  might  be  compensated  for  dimi- 
nished sales,  by  the  high  prices  that  copv- 
right  would  enable  them  to  obtain  ;  but- 
the  other  trades  would  suffer  not  only  by 
a  diminution  of  business,  but  also  by  a 
reduction  in  profit. 

Secondly,  the  advantages  flowing  from 
such  a  law  would  not  be  reciprocal. 
This  objection  applies  particularly  to 
Great  Britain ;  but  also  to  other  nations, 
though  with  less  force.  On  the  score 
of  justice  to  authors,  we  have  gone 
ahead  of  our  enlightened  mother,  for  we 
grant  to  an  author  twenty-eight  years, 
with  an  additional  term  of  fourteen,  if  he 
or  his  wife  or  children  live  so  long,  taxing 
him  but  one  copy ;  whereas  she  grants 
him  twenty-eight  years,  and  if  he  live 
longer,  to  his  life's  end,  taxing  him  five 
copies ;  so  we  should  get  a  term  generally 
4* 


42 


REMARKS  ON 


33£  per  cent,  shorter,*  and  pay  a  tax  400 
per  cent,  greater.  But  this  shortcoming 
is  nothing  compared  to  what  we  should 
suffer  in  consequence  of  the  unequal 
state  of  things  in  the  two  countries :  ive 
have  confidence  in  British  authors  and 
British  critics,  and  as  soon  as  the  works 
of  the  former  have  gained  the  approbation 
of  the  latter,  we,  good  honest  souls  and 
dutiful  children,  stand  with  open  mouths 
ready  to  praise  and  swallow  whatever 
food  their  authors  offer  to  our  literary 
appetite :  they  have  no  such  confidence  in 
our  authors  and  critics;  and  therefore  the 
works  of  our  authors  must  obtain  the 
approbation  of  their  critics,  before  they 
can  be  available  for  purposes  of  profit  in 
the  Britannic  market. 

Thirdly;  The  condition  of  the  publish- 
ing business  in  Great  Britain  is  against  us : 


*  Few  authors  live  28  years  after  the  publication  of 
a  successful  book  ;  the  value  of  the  contingency  of  such 
rare  longevity  is  hardly  appreciable,  and  not  worth 
taking  into  the  account. 


LITERARY  PROPERTY.  43 

the  spirit  of  the  ancient  guilds,  a  spirit  of 
ferocious  monopoly  yet  presides  over  the 
trade,  and  unless  an  American  author  has 
by  some  lucky  charm  obtained  a  vested 
right  in  the  favour  of  some  great  London 
publisher,  he  will  strive  in  vain  to  gain 
access  to  the  organs  of  praise,  or  to  enter 
the  avenues  to  success.  It  is  not  so  here : 
our  publishers  would  eagerly  compete 
with  one  another  in  buying  British  copy- 
rights, and  publishing  British  books.  Even 
now,  when  no  copyright-protection  exists, 
considerable  sums  are  paid  to  British 
authors  to  ensure  the  reception  of  the  first 
copy  that  shall  reach  our  shores ;  it  is  then 
hurried  through  the  press  in  forty-eight 
hours ;  and  in  forty-eight  more,  very  often, 
a  rival  edition  makes  its  appearance,  and 
thus  the  public  are  furnished  with  an  abun- 
dant supply  at  reasonable  prices.  The 
expense  and  difficulty  of  bringing  an  Ame- 
rican work  into  notice  with  the  British 
public,  are  entirely  insurmountable  by 
American  authors  generally,  for,  saith  the 
British  reviewer,  "  who  reads  an  Amcri- 


44  REMARKS  ON 

"  can  book  ?"  I  think  I  hear  a  petitioner 
exclaim,  "  You  forget  Washington  Irving ;" 
nobody  who  has  read  the  Conquest  of  Gra- 
nada, the  Life  of  Columbus,  and  the  Tales 
of  the  Alhambra,  can  ever  forget  him ;  yet 
he,  the  very  glory  of  modern  English, 
found  it  necessary  to  spend  seventeen 
years  abroad,  to  achieve  that  complete 
success  which  at  length  did  crown  his 
persevering  industry  :  he  is  an  exception, 
et  exceptio  probat  regulam. 

The  following  fact  shows,  in  a  clear 
light,  how  difficult  of  access  is  the  British 
market  to  an  American  work  :  the  life  of 
the  first  man  in  this  nation  was  written  by 
the  pen  of  the  second,  and  for  fulness  of 
detail,  fidelity  of  statement,  and  impar- 
tiality of  representation,  the  work  is  equal, 
if  not  superior,  to  any  other  uninspired 
book ;  and  it  will  be  considered  by  the 
writers  of  the  coming  age  as  a  well  of 
truth,  from  which  they  may  draw  the  pure 
streams  of  history.  Six  years  ago,  this 
author,  the  revered  John  Marshall,  revised 
and  condensed,  and  almost  re- wrote  the 


LITERARY  PROPERTY.  45 

work  in  question,  giving  to  the  biography 
of  Washington,  the  shape  in  which  he 
wished  it  to  descend  to  posterity :  one  of 
our  most  extensive  publishing  houses, 
whose  bookselling  connexions  in  Britain 
are  extensive  and  powerful,  sent  two  hun- 
dred and  fifty  copies  to  London,  and  offer- 
ed them  to  the  trade  at  about  one-fourth  of 
the  price  of  the  first  edition  ;  the  books  re- 
mained in  London  two  years,  and  the  ad- 
venture was  finally  wound  up  by  selling 
fifty  copies  on  a  long  credit  and  at  a  low 
price,  and  sending  back  two  hundred 
copies  to  Philadelphia,  saddled  with 
heavy  expenses.  While  this  valuable 
work  was  knocking  at  John  Bull's  gate 
of  triple  brass,  whose  hinges  did  not 
even  condescend  to  'grate  harsh  thunder,' 
the  sale  in  this  country  amounted  to  several 
thousand :  but  when  a  British  book  of 
equal  reputation  knocks  at  the  gate  of  our 
literary  market,  the  portal  forthwith  emits 
'  harmonious  sound,  on  golden  hinges  turn- 
ing.' 

Fourthly,  if  the  reprinting  of  new  British 


46  EEMARKS    ON 

books  here  were  subjected  to  a  copy- 
right tax,  they  would  immediately  be  print- 
ed in  Belgium,  Holland,  Switzerland,  and 
perhaps  in  France  and  Italy,  expressly  for 
this  market,  in  such  cheap  forms  as  to 
enable  them  to  pay  the  duty  and  under- 
sell the  American  copyright  editions. 
There  are  large  capitals  in  Belgium  con- 
stantly employed  in  making  what  the 
French  call  contrefacons,  (called  here  re- 
prints) of  all  the  new  books  that  appear  in 
France,  for  which  the  Belgiums  pay  no 
copyright,  and  which  they  print  with  such 
expedition,  that  they  are  often  on  their  way 
to  the  four  quarters  of  the  earth,  before  a 
dozen  copies  of  the  originals  have  escaped 
from  the  confines  of  France.  Belgium  is 
in  a  similar  position  with  regard  to  the 
literature  of  France,  that  we  are  in,  with 
respect  to  that  of  Britain.  French  authors 
publish  new  works,  and  the  Belgians  re- 
print them  not  only  for  Belgium,  but  all  the 
rest  of  the  world  except  France ;  and  thus 
cut  off'  France  from  a  foreign  commerce 
in  books.  France  (like  Britain  of  us,)  com- 


LITERARY   PROPERTY.  47 

plains  of  Belgium,  and  asks  for  an  inter- 
national law,  but  Belgium  says,  no  ;  the 
benefit  would  not  be  mutual.  Such  a  law 
between  us  and  Britain  would  open  our 
market  to  these  industrious  Belgians,  whose 
prqiography*  would  swell  our  surplus  rev- 
enue to  such  a  ruinous  size,  that  even  an 
Indian  war  would  scarcely  cure  its  ple- 
thora, and  would  operate  as  a  check  upon 
a  very  considerable  portion  of  what  is 
called  by  some  statesmen,  American  indus- 
try. 

It  seems  to  me  a  needless  thing  to  cite 
any  more  reasons  against  the  passage  of 
an  international  copy-right  law  at  present; 
I  will  therefore  now  endeavour  to  make 
my  own  views  understood,  as  to  what 
ought  to  be  done  by  all  civilized  nations, 
on  the  subject  of  literary  property. 


*  These  Belgian  pirates  are  very  learned  pundits,  and 
dignity  their  business  of  making  contrrfurons  of  new 
French  works  with  the  sounding  title  ot'  prolography, 
signifying  that  their  hasty  cheap  editions  are  printed 
from  thrjirst  copy  that  escapes  lrom  the  lethargy  of  a 
French  bookstore. 


LITERARY  PROPERTY.  49 


CHAPTER   IV. 

All  mankind  interested  in  the  security  ofliterary  prop- 
erty—  Erroneous  views  of  Authors,  Publishers,  Con- 
sumers and  Legislators — Injustice  of  the  British  and 
American  statutes — A  perpetual  right  in  Authors 
would  produce  good  and  cheap  books — Not  a  monop- 
oly. 

The  subject  of  copyright,  or  the  protec- 
tion of  literary  property  is  one  of  great 
importance  to  the  whole  world.  Every 
human  being,  great  and  small,  high  and 
low,  gentle  and  simple,  male  and  female, 
is  interested  in  this  matter.  Legislators 
have  treated  it  as  a  question  of  conflicting 
interest  between  authors  and  publishers  on 
the  one  hand,  and  ihe  public  or  the  con- 
sumers of  books  on  the  other;  authors, 
particularly  when  young,  too  frequently 
look  upon  it  as  a  question  of  conflicting 
interest  between  themselves  and  the  pub- 
5 


50  REMARKS  ON 

lisbers ;  and  consumers  through  their  re- 
presentative legislators,  have  endeavoured 
to  secure  to  themselves  the  blessing  of 
cheapness,  by  injurious  enactments. 

These  erroneous  notions  have  produced 
the  unjust  and  defective  statutes  on  this 
subject  passed  by  the  parliament  of  Great 
Britain,  and  the  congress  of  the  United 
States;  unjust,  because  they  have  abridged 
the  perpetual  right  which  an  author  ought 
to  have  in  the  product  of  his  own  labour, 
giving  him  for  his  fee  simple,  a  term  of 
years  of  little  worth :  defective,  because 
they  have  not  afforded  encouragement  to 
authors,  nor  secured  cheapness  to  consu- 
mers, the  effects  intended  to  be  produced 
by  their  enactors.  Like  the  interests  of  a 
man  and  his  wife  and  their  children,  those 
of  authors,  publishers  and  consumers  are 
not  in  conflict,  but  in  harmony,  and  (if  not 
interfered  with  by  erroneous  legislation,) 
tend  to  produce  the  best  commodity  at  the 
lowest  price  and  the  greatest  amount  of 
gain.  I  will  try  to  explain  these  seeming 
paradoxes.     That  the  limited  term  grant- 


LITERARY  l'ROPERTY.  51 

ed  to  authors  by  the  statutes  is  not  a  suffi- 
cient inducement  to  produce  good  books, 
is  proved  by  the  flood  of  trash  that  has 
overwhelmed  both  England  and  America  ; 
and  it  is  trash,  because  the  author's  short- 
lived interest  in  his  work  cannot  remune- 
rate him  for,  nor  induce  him  to,  expend 
the  time  and  labour  required  to  produce  a 
good  book.  As  the  circulation  of  these 
crudities  must  be  limited,  the  price  must 
be  high,  and  the  interests  of  the  authors, 
the  publishers  and  the  public  are  all  in 
conflict. 

A  law  of  perpetual  copyright  would  pro- 
duce exactly  contrary  results.  Men  of 
talents  would  devote  their  lives  to  litera- 
ture, because  the  fruit  of  their  labours 
would  descend  to  their  children  ;  so  many 
good  books  would  be  produced  that  bad 
ones  would  be  driven  out  of  market,  and 
their  production  would  cease ;  and  as  a 
great  circulation  is  much  to  be  desired  for 
works  that  will  last  for  ages,  it  would  be 
the  interest  of  the  authors,  or  the  owners 
of  the  copyrights,  to  sell  at  the  lowest 


52  REMARKS  ON 

price  that  would  produce  the  greatest 
amount  of  gain,  and  not  the  greatest  pro- 
portion of  profit.  In  the  sale  of  commo- 
dities that  are  good  enough  to  be  looked 
upon  as  necessaries,  the  former  condition 
lessens  price,  the  latter  increases  it. 

To  explain  this  matter  of  gain,  we  will 
suppose  that  where  there  is  one  person 
who  can  afford  to  give  two  dollars  for  a 
book,  there  are  three  who  can  give  a  dol- 
lar and  a  half,  and  ten  who  can  give  a 
dollar;  so  that  if  1000  copies  would  sell 
at  $2,  3000  would  sell  at  $1  50,  and  10,000 
would  sell  at  $1. 

Cost  of  1000  copies, 
Setting  the  Types  $  500 

Paper,  Press-work  and  Boards,     500 
Author  for  Copyright,  500 


81500 


or  $1  50,  per  copy. 

Wholesale  price   $1  75 ;    Retail   price 
2  ;  Publisher's  profit  $250. 


LITERARY  PROPERTY.  58 

Cost  of  3000  Copies. 

Setting  the  Types,  $  500  " 

Paper,  Press-work  and  Boards  1500 
Author  for  Copyright,  1000 


$3000 

or  $1  per  copy. 

les: 
$1  50; 


Wholesale   price   $1  25 ;    Retail  price 
1  50 ;  Publisher's  profit  $750. 


Cost  of  10,000  Copies. 

Setting  the  Types,  $  500 

Paper,  Press-work  and  boards,    5000 
Author  for  Copyright,  2000 


$7,500 


or  75  cts.  per  copy. 

Wholesale   price  87  1-2  cts. ;    Retail 
price  $1 ;  Publisher's  profit  $1250. 

Thus  it  appears,  that  at  the  medium 
price,  the   author  would  make  twice  as 

5* 


54  REMARKS  ON 

rhuch,  and  the  publisher  three  times  as 
much,  and  at  the  minimum  price,  the 
author  would  make  four  times  as  much, 
and  the  publisher  five  times  as  much,  as 
if  the  book  were  held  at  the  maximum 
price.  The  paper-makers  and  binders 
would  be  benefited  in  one  case  by  having 
three  times  as  much  work,  and  in  the  other, 
ten  times  as  much.  The  proportion  of 
advantage  would  not  be  so  great  to  the 
printers,  because  the  increase  would  only 
be  in  press-work.  The  public  would  be 
great  gainers  by  10,000  readers  being 
supplied  instead  of  1,000;  and  by  a  value 
of  $10,000,  instead  of  $2,000,  being  added 
to  the  national  wealth. 

These  considerations  extinguish  the 
notion  of  monopoly,  which  some  suppose 
would  be  conferred  on  authors  by  perpe- 
tual copyright;  simply  because  interest, 
that  most  eloquent  of  teachers,  will  per- 
suade them  to  sell  at  low  prices.  One 
other  word  to  those  who  fear  to  do  jus- 
tice, lest  monopoly  should  ensue :  it  is 
admitted  that  a  person  shall  have  a  per- 


LITERARY  PROPERTY".  55 

petual  property  in  the  work  of  his  hands, 
a  labour  which  gives  him  healthy  days, 
cheerful  evenings,  and  quiet  nights;  he 
builds  a  housed/or  his  own  benefit;  he  lives 
and  dies  in  it,  and  transmits  it  to  his  heirs 
or  assigns  forever ;  and  you  do  not  call 
this  monopoly,  and  you  are  right :  another 
person  devotes  himself  to  literature,  and 
writes  books  for  the  benefit  of  his  fellow 
mortals,  (for  if  they  give  neither  pleasure 
nor  profit,  they  will  not  sell;)  he  labours 
day  and  night  with  his  head  and  pen,  a 
work  that  gives  neither  healthy  days,  nor 
cheerful  evenings,  nor  quiet  nights  ;  his 
spirit  is  forced  to  grapple  daily  in  despe- 
rate struggle  with  the  inertia  of  its  earthy 
tabernacle,  in  order  to  gain  the  mountain 
height  of  severe  thought ;  and  thus  with 
wear  and  tear  of  mind  and  body,  he  pro- 
duces, not  a  house  useful  only  to  himself, 
but  a  moral,  or  religious,  or  imaginative, 
or  scientific  book,  that  may  increase  the 
happiness  of  thousands  yet  unborn ;  and 
yet  this  honest  labourer  is  not  to  have  a 


56  RKMAUKS  ON 

complete  property  in  his  labour's  product, 
for  fear  of  monopoly  ! 

His  case  is  precisely  the  same  as  that 
of  the  maker  of  houses,  who  cannot  get  a 
monopoly  rent,  because  other  men  make 
more  houses,  as  soon  as  he  demands  too 
much.  So,  when  an  author  who  has  pro- 
duced a  book  for  which  the  demand  is 
great,  is  unwise  enough  to  ask  too  high  a 
price,  another  author,  (perhaps  greater 
than  he,)  will  write  another  .book  on  the 
same  subject,  and  thus  demolish  his  ideal 
monopoly. 


LITERARY  PROPERTY.  57 


CHAPTER     V. 

Progress  of  Opinion  on  this  Subject  in  various  Coun- 
tries— In  Britain — Serjeant  Talfourd's  Speech  in  the 
House  of  Commons — Mr.  Thomas  Tegg's  Pamphlet 
in  Opposition  to  Authors'  Rights — His  True  Reason 
— What  the  Law  takes  from  Authors  for  the  sake  of 
the  Public,  inures  to  the  benefit  of  Publishers. 

The  article  on  copyright  which  is  now 
republished  from  Napier's  valuable  Sup- 
plement to  the  Encyclopaedia  Britannica, 
was  written  in  1819,  and  contains  the  his- 
tory of  the  subject  up  to  that  time;  and 
such  a  discussion  of  the  defects  and  effects 
of  the  copyright  law,  as  must  convince 
every  reader  of  the  ability  of  the  author, 
and  of  his  thorough  knowledge  of  the  sub- 
ject.  It  is  earnestly  recommended  to  the 
deliberate  perusal  of  every  one  who  is 
interested  in  Literary  Property,  cither  as 
author,  owner,  publisher,  or  reader ;  and 


58  REMARKS  ON 

most  particularly  to  those  honourable  per- 
sons who  possess  the  power  of  modifying 
it,  either  for  good  or  for  evil,  by  acts  of 
legislation.  It  was  the  opinion  of  its  author 
that  matters  were  not  then  ripe  for  perpe- 
tual copyright,  and  of  an  international 
law  he  merely  puts  forth  a  tender  bud. 

Since  then  matters  have  ripened  consi- 
derably, and  it  is  to  be  hoped  that  the  full- 
ness of  time  has  nearly  arrived,  when 
mankind  will  consent  to  do  justice  to  those 
who  labour  in  the  fields  of  literature  and 
science.  The  indications  of  the  progress 
of  opinion  towards  a  healthy  state,  both 
in  Europe  and  America,  are  not  to  be 
mistaken.  In  Britain  the  subject  has  for 
some  time  occupied  the  public  mind,  and 
on  the  18th  of  May  last  Mr.  Serjeant 
'  Talfourd,  in  the  House  of  Commons, 
moved  for  leave  to  bring  in  a  bill  to  con- 
solidate the  law  relating  to  copyright,  and 
to  extend  the  term  of  its  duration.  The 
following  extracts  are  taken  from  a  very 
interesting  speech  made  on  that  occasion 
by  the  learned  and  enlightened  Serjeant : 


LITERARY  PROPERTY.  59 

"It  is,  indeed,  time  that  literature  should  experience 
"some  of  the  blessings  of  legislation;  for  hitherto,  with 
"  the  exception  of  the  noble  boon  conferred  on  the  acted 
"drama,  by  the  bill  of  my  honourable  friend  the  mem- 
"  her  for  Lincoln,  it  has  received  scarcely  any  thing 
"but  evil.  If  we  should  simply  repeal  all  the  statutes 
"which  have  been  passed  under  the  guise  of encourag- 
"  ing  learning,  and  leave  it  to  be  protected  only  by  the 
"  principles  of  the  common  law,  and  the  remedies  which 
"  the  common  law  could  supply,  I  believe  the  relief 
"  would  be  welcome.  It  did  not  occur  to  our  ancestors, 
"  that  the  right  of  deriving  solid  benefits  from  that 
"  which  springs  solely  from  within  us — the  right  of 
"  property  in  that  which  the  mind  itself  creates,  and 
"  which,  so  far  from  exhausting  the  materials  common 
"  to  all  men,  or  limiting  their  resources,  enriches  and 
"  expands  them — a  right  of  property  which,  by  the 
"  happy  peculiarity  of  its  nature,  cr.n  only  be  enjoyed 
"by  the  proprietor  in  proportion  as  it  blesses  mankind 
"  — should  be  exempted  from  the  protection  which  is 
"extended  to  the  ancient  appropriation  of  the  soil,  and 
"  the  rewards  of  commercial  enterprise.  By  the  com- 
"  mon  law  of  England,  as  solemnly  expounded  by  a 
"  majority  of  seven  to  four  of  the  judges  in  the  case  of 
" '  Donaldson  ».  Beckett,'  and  us  sustained  by  the  addi- 
tional opinion  of  Lord  Mansfield,  the  author  of  an  ori- 
"  ginal  work  had  forever  the  sole  right  of  multiplying 
"  copies,  and  a  remedy  by  action,  incident  to  any  right, 
"  against  any  who  should  infringe  it." 

"  In  the  special  verdict  of  '  Miller  v-  Taylor,'  (1769,) 
"  it  was  found  as  a  fact, '  that  before  the  reign  of  Queen 


60  REMARKS  ON 

"  Anne,  it  was  usual  to  purchase  from  authors  the  per- 
"  petual  copyrights  of  their  books,  and  to  assign  the 
"  same  from  hand  to  hand  for  valuable  considerations, 
"  and  to  make  them  the  subject  of  family  settlements.' 
"  In  truth,  the  claim  of  the  author  to  perpetual  copy- 
"  right  was  never  disputed,  until  literature  had  received 
"  a  fatal  present  in  the  first  act  of  parliament  for  its 
"  encouragement — the  8th  Anne,  c.  19,  passed  in  1709; 
"in  which  the  mischief  lurked,  unsuspected,  for  many 
"  years,  before  it  was  called  into  action  to  limit  the 
"  rights  it  professed,  and  was  probably  intended  to 
"  secure." 

"  This  act,"  "  confers  on  learning  the  benefit  of  a 
"forced  contribution  of  nine  copies  of  every  work,  on 
"  the  best  paper,  for  the  use  of  certain  libraries.  Except 
"  in  this  last  particular,  the  act  seems  to  have  remained 
"  a  dead  letter  down  to  the  year  1760,"  "  no  one  having 
"  suggested  that  its  effect  had  been  to  repeal  the  com- 
"  mon-law  right  of  authors  to  the  term  during  which 
"  its  remedies  were  to  operate.  So  far  was  this  con- 
"  struction  from  being  suspected,  that  in  this  interval 
"  of  fifty  years,  the  Court  of  Chancery  repeatedly  inter- 
fered by  injunction,  to  restrain  the  piracy  of  books  in 
"  which  the  statutable  copyright  had  long  expired. 
"  This  protection  was  extended  in  ]  735,  to  '  The  Whole 
"  Duty  of  Man,'  the  first  assignment  of  which  had  been 
"  made  seventy-eight  years  before  ;  in  the  same  year  to 
"the  'Miscellanies  of  Pope  and  Swift;'  in  1736,  to 
"  '  Nelson's  Festivals  and  Fasts;'  in  1739,  to  the  '  Para- 
dise Lost;'  and  in   1752,  to  the  same  poem,  with  a 


LITERARY  PROPERTY.  61 

"  life  of  the  author,  and  the  notes  of  all  preceding  edi- 
"  tions." 

"  In  1766,  an  action  was  brought,  ■  Miller  v.  Taylor,' 
"for  pirating  'Thomson's  Seasons,'  in  the  Court  of 
"  King's  Bench,  before  whom  it  was  elaborately  argued, 
"  and  which,  in  1769,  gave  judgment  in  favour  of  the 
"  subsisting  copyright,  Lord  Mansfield,  Mr.  Justice 
"  Willcs,  and  Mr.  Justice  Aston,  holding  that  copyright 
"  was  perpetual  by  the  common  law,  and  not  limited  by 
"  the  statute,  except  as  to  penalties,  and  Mr.  Justice 
"  Yates  dissenting  from  them.  In  1774,  the  question 
"  was  brought  before  the  House  of  Lords,  when  eleven 
"judges  delivered  their  opinions  upon  it — six  of  whom 
"  thought  the  copyright  limited,  while  five  held  it  per- 
"  petual ;  and  Lord  Mansfield,  who  would  have  made 
"  the  numbers  equal,  retaining  his  opinion,  but  express- 
"  ing  none.  By  this  bare  majority — against  the  strong 
"  opinion  of  the  Chief  Justice  of  England — was  it 
"  decided  that  the  statute  of  Anne  has  substituted  a 
"  short  term  in  copyright  for  an  estate  in  fee ;  and  the 
"  rights  of  authors  were  delivered  up  to  the  mercy  of 
"  succeeding  parliaments." 

After  enumerating  the  minor  details  of 
the  proposed  bill,  the  learned  mover  ap- 
proaches and  enunciates  its  principal 
object  in  the  following  manner: — 

"  Although  I  see  no  reason  why  authors  should  not 
"  be  restored  to  that  inheritance  which,  under  the  name 
6 


02  REMARKS  ON 

"  of  protection  and  encouragement,  has  been  taken  from 
"  them,  I  feel  that  the  subject  has  so  long  been  treated 
"  as  matter  of  compromise  between  those  who  deny 
"  that  the  creations  of  the  inventive  faculty,  or  the 
"  achievements  of  the  reason,  are  the  subjects  of  pro- 
"  perty  at  all,  and  those  who  think  that  the  property 
"  should  last  as  long  as  the  works,  which  contain  truths 
"  and  beauty  live,  that  I  propose  still  to  treat  it  on  the 
"  principle  of  compromise,  and  to  rest  satisfied  with  a 
"  fairer  adjustment  of  the  difference  than  the  last  act  of 
"  parliament  affords.  I  shall  propose — subject  to  modi- 
"  fication  when  the  details  of  the  measure  shall  be  dis- 
"  cussed — that  the  term  of  property  in  all  works  of 
"  learning,  genius,  and  art,  to  be  produced  hereafter,  or 
"  in  which  the  statutable  copyright  now  subsists,  shall 
"  be  extended  to  sixty  years,  to  be  computed  from  the 
"  death  of  the  author ;  which  will  at  least  enable  him, 
"  while  providing  for  the  instruction  and  the  delight  of 
"  distant  ages,  to  contemplate  that  he  shall  leave  in  his 
"  works  themselves  some  legacy  to  those  for  whom  a 
"  nearer,  if  not  a  higher  duty,  requires  him  to  provide, 
"  and  which  shall  make  '  death  less  terrible.'  " 

"  There  is  something,  sir,  peculiarly  unjust  in  bound- 
"  ing  the  term  of  an  author's  property  by  his  natural 
"  life,  if  he  should  survive  so  short  a  period  as  twenty. 
"  eight  years.  It  denies  to  age  and  experience  the  pro- 
"  bable  reward  it  permits  to  youth — to  youth  suffi- 
"  ciently  full  of  hope  and  joy,  to  slight  its  promises.  It 
"  gives  a  bounty  to  haste,  and  informs  the  laborious  stu- 
"  dent  who  would  wear  away  his  strength  to  complete 
"  some  work  which   '  the  world  will  not  willingly  let 


LITERARY  PROPERTY.  (>'A 

"  die,'  that  the  more  of  his  life  he  devotes  to  its  perflc- 
"  tion,  the  more  limited  shall  he  his  interest  in  its  fruits. 
"  It  stops  the  progress  of  remuneration  at  the  moment 
"  it  is  most  needed,  and  when  the  benignity  of  nature 
"  would  extract  from  her  last  calamity  a  means  of  sup- 
"  port  and  comfort  to  survivors.  At  the  moment  when 
"  his  name  is  invested  with  the  interest  of  the  grave — 
"  when  the  last  seal  is  set  upon  his  earthly  course,  and 
"  his  works  assume  their  place  among  the  classics  of 
"  his  country — your  law  declares  that  his  works  shall 
"  become  your  property;  and  you  requite  him  by  seiz- 
"  ing  the  patrimony  of  his  children." 

"  The  term  allowed  by  the  existing  law  is  curiously 
"  adapted  to  encourage  the  lightest  works,  and  to  leave 
"  the  noblest  unprotected.  Its  little  span  is  ample  for 
"authors  who  seek  only  to  amuse;  who,  'to  beguile 
"  the  time,  look  like  the  time;'  who  lend  to  frivolity  or 
"  corruption  '  lighter  wings  to  fly  ;'  who  sparkle,  blaze, 
"  and  expire.  These  may  delight  for  a  season  the  fire- 
"  flies  on  the  heaving  sea  of  public  opinion — the  airy 
"proofs  of  the  intellectual  activity  of  the  age; — yet 
"surely  it  is  not  just  to  legislate  for  those  alone,  and 
"deny  all  reward  to  that  literature  which  aspires  to 
"  endure." 

The  foregoing  quotations  from  the  learn- 
ed Serjeant's  speech,  which  may  fairly  be 
called  "  elegant  extracts,"  seem  to  me  to 
contain  unanswerable  arguments  in  favour 
of  an   author's  fee   simple.      I  have  not 


64  REMARKS  ON 

learned  the  fate  of  his  bill,  but  Mr.  Tho- 
mas Tegg,  a  London  bookseller,  in  a 
pamphlet  written  by  him  against  the  pro- 
posed bill,  says,  "  It  is  not  without  surprise 
"  that  I  see  the  House  of  Commons  so  dis- 
"  posed  to  entertain  the  proposition  of  the 
"  learned  Serjeant."  It  is  to  be  hoped 
that  this  surprising  disposition  of  the 
house  is  a  true  exponent  of  the  improved 
state  of  public  opinion  in  Britain,  on  the 
important  measure  of  restoring  their  just 
rights  to  authors.  The  true  reason  of  Mr. 
Tegg's  opposition,  peeps  through  the  spaces 
of  the  following  paragraph,  quoted  from 
the  19th  and  20th  pages  of  his  "Remarks 
on  the  Speech  of  Serjeant  Talfourd;" 
"  The  expense  of  making  a  book  known, 
"is  much  greater  than  the  public,  and, 
"  perhaps,  than  members  of  the  House  of 
"  Commons  have  any  idea  of;  and  this  all 
"  falls  on  the  bookseller,  who  knows  that 
"the  connexion  he  forms  with  the  book 
"  survives  the  term  of  the  monopoly,  and 
"  that  he  retains  a  sort  of  good-will  pro- 
"  perty,  after  the  expiration  of  the  copy- 


LITERARY  PUOI'ERTY.  05 

"right,  and  generally  the  principal  share 
"  of  the  subsequent  sale."  Mr.  Tegg  being 
an  old  publisher,  probably  possesses  many 
of  these  rights  that  have  survived  the  term 
of  their  legal  existence,  and  therefore  he 
cannot  rejoice  in  any  legal  provision  that 
would  transfer  them  to  their  proper 
owners.  The  quotation  also  shows  that 
the  consumers  do  not  gain  by  shortening 
the  author's  term,  because  a  sort  of  good- 
will properly  survives,  vesting  in  the  book- 
seller, instead  of  the  author,  and  putting 
into  the  pocket  of  the  former,  a  profit 
which  ought  to  inure  to  the  latter.  If 
time  and  space  would  permit,  it  would  be 
an  easy  task  to  prove,  that  the  expense  of 
making  the  book  known  does  not  "  all  fall 
"  on  the  bookseller  ;"  for  this  item  is  pro- 
vided for,  either  by  deduction  from  the 
sum  allowed  by  the  bookseller  for  copy- 
right, or  by  addition  to  the  price  paid  by 
the  readers  of  the  books :  except  where 
an  inexperienced  publisher  buys  the  copy- 
right of  a  worthless  book,  and  then  the 
loss  is  all  his  own. 

6* 


LITER  Alt  Y    I'KOJPEKTY. 


07 


CHAPTER  VI. 

Opinion  in  the  United  States — Report  to  Congress  in 
1831 — American  Jurist — Report  to  Congress  in 
1837 — Notice  of  Mrs.  Macaulay's  Defence,  in  Law 
Intelligencer. 

That  public  opinion  in  this  country  is 
rapidly  ripening  into  justice  towards 
authors,  may  be  inferred  from  the  follow- 
ing quotations  from  a  report  made  by  the 
Judiciary  Committee  in  1831,  when  Con- 
gress passed  the  last  law  increasing  the 
duration  of  an  author's  protection : — 
"  Upon  the  first  principles  of  proprietor-* 
"  ship  in  property,  an  author  has  an  exclu- 
"  sive  and  perpetual  right,  in  preference 
"  to  any  other,  to  the  fruits  of  his  labour. 
"  Though  the  nature  of  literary  property  is 
"  peculiar,  it  is  not  the  less  real  and  valua- 
"  ble.  If  labour  and  effort  in  producing 
"  what  before  was  not  possessed  or  known 


68 


REMARKS  ON 


"  will  give  title,  then  the  literary  man  has 
"  title,  perfect  and  absolute,  and  should 
"  have  his  reward :  he  writes  and  he  labours 
"  as  assiduously  as  does  the  mechanic  or 
"husbandman." 

"  Nor  is  there  any  doubt  what  the  intcr- 
"  est  and  honour  of  the  country  demand  on 
"  this  subject." 

"  We  ought  to  present  every  reasonable 
"  inducement  to  influence  men  to  conse- 
"  crate  their  talents  to  the  advancement  of 
"  science.  It  cannot  be  for  the  interest  or 
"  honour  of  our  country  that  intellectual 
"  labour  should  be  depreciated,  and  a  life 
"  devoted  to  research  and  laborious  study 
"  terminate  in  disappointment  and  pov- 
"  erty." 

Not  having  the  report  itself,  I  have  taken 
the  above  sentences  from  a  very  interest- 
ing article  on  literary  property  contained 
in  the  tenth  volume  of  the  American 
Jurist,*  the  learned  writer  of  which  is  the 
author  of  several  very  successful  and  use- 

*  Page  80. 


LITERARY  PROPERTY.  69 

ful  treatises  on  several  branches  of  law. 
The  enlightened  writer  proceeds  llius : 
"It  will  be  seen  by  the  above  extract,  that 
"  a  respectable  committee  of  the  House  of 
"  Representatives  assert,  that  an  author 
"  according  to  all  the  rules  of  law,  has  a 
"  perpetual  copyright ;  and  that  it  is  evi- 
"  dent  that  that  committee  would  have  re- 
ported a  bill  to  this  effect,  if  they  had 
"  thought  the  public  mind  prepared  for  so 
"  great  a  change  at  one  stride.  But  the 
"  time,  we  venture  to  augur,  is  not  far 
"  distant,  when  authors  will  be  placed 
"  nearer  upon  an  equality  with  their  fel- 
"  low-men  in  the  enjoyment  of  what  they 
"  earn  by  their  labour.  The  public  arc 
"growing  more  and  more  disposed  in  ad- 
"  mit,  that  if  there  be  one  description  of 
"  property  which  merits  more  protection, 
"  or  one  which  it  is  more  politic  to  favour 
"  than  another,  it  is  literary  property ;  and 
"  certainly  if  there  be  any  sum  which 
"  the  public  are  more  free  in  paying  than 
"  another,  it  is  the  trivial  extra  sum  put 
"  upon  a  book,  which  is  intended  for  the 
"  author's  pocket." 


70 


REMARKS  ON 


The  same  improvement  in  public  opinion, 
may  be  inferred  from  the  general  tenor  of 
the  report  made  on  the  16th  February, 
1837,  by  a  select  committee  of  the  senate  ; 
and  particularly  from  the  following  para- 
graph ;  "  That  authors  and  inventors  have, 
"  according  to  the  practice  among  civili- 
"  zed  nations,  a  property  in  the  respective 
"  productions  of  their  genius,  is  incontes- 
"  tible  :  and  that  this  property  should  be 
"protected  as  effectually  as  any  other 
"  property  is  by  law,  follows  as  a  legiti- 
"  mate  consequence." 

In  the  United  States  Law  Intelligencer, 
for  August,  1831,  is  an  interesting  article 
having  relation  to  our  subject,  under  the 
caption  of  "  Mrs.  Macaulay's  defence  of 
"  Literary  property ;"  in  which  are  long 
quotations  from  her  '  Modest  Plea  for  the 
'  property  of  copyright,'  one  of  which  is  a 
triumphant  refutation  of  Lord  Camden's 
bombastic  argument  against  literary  prop- 
erty, that  "  Glory  is  the  reward  of  science, 
"  and  those  who  deserve  it  scorn  all  meaner 
"  praise :    it  was  not  for  gain  that  Bacon, 


LITERARY  PROPERTY.  71 

"  Newton,  Milton  and  Locke,  instructed  the 
"  world."  Law  Intelligencer,  for  August, 
1831,  p.  276.  In  the  closing  paragraph  of 
that  article,  the  editor  says :  "  We  are 
"  happy  to  observe,  that  the  opinions  enter- 
"  tained  and  so  well  expressed,  by  this 
"  female  defender  of  the  rights  of  authors, 
"  are  gaining  favour  in  the  United  States. 
"  That  the  indifference  to  literary  labour 
"  and  merit,  is  yielding  to  the  liberality 
"  and  good  sense  of  the  age,  we  have  the 
"best  evidence  in  the  success  of  Mr. 
"  Verplank's  bill  at  the  last  session  of  Con- 
"  gross." 

The  following  is  quoted  from  an  opi- 
nion full  of  light  and  learning,  delivered 
by  Mr.  Justice  Thompson,  of  the  Supreme 
Court  of  the  United  States,  in  the  case  of 
Wheaton  v.  Peters:  and  shows  his  own 
sentiments  on  the  subject  of  literary  pro- 
perty, as  well  as  those  of  Mr.  Christian, 
the  learned  annotator  upon  Blackstone : 

"  And,  in  accordance  with  these  sound  principles, 
"  and  as  applicable  to  the  subject  of  copyright,  are  the 
"  remarks  of  Mr.  Christian,  in  his  notes  to  Blackstone's 


72  REMARKS  ON 

"  Commentaries,  (2  B.  Com.  406,  and  note.)  '  Nothing,' 
"  says  he, '  is  more  erroneous  than  the  practice  of  refer- 
"  ring  the  origin  of  moral  rights,  and  the  system  of 
"  national  equity,  to  that  savage  state,  which  is  sup- 
"  posed  to  have  preceded  civilized  establishments,  in 
"  which  literary  composition,  and  of  consequence  the 
"  right  to  it,  could  have  no  existence.  But  the  true 
"  mode  of  ascertaining  a  moral  right,  I  conceive,  is  to 
"  inquire  whether  it  is  such  as  the  reason,  the  cultivated 
"  reason  of  mankind,  must  necessarily  assent  to.  No 
"  proposition  seems  more  conformable  to  that  criterion, 
"  than  that  ever}7  one  should  enjoy  the  reward  of  his 
"  labour ;  the  harvest,  where  he  has  sown,  or  the  fruit 
"  of  the  tree,  which  he  has  planted.'  '  Whether  literary 
"  property  is  sui  generis,  or  under  whatever  denomina- 
"  tion  of  rights  it  may  more  properly  be  classed,  it  seems 
"  founded  upon  the  same  principle  of  general  utility  to 
"  society,  which  is  the  basis  of  all  other  moral  rights 
"  and  obligations.  Thus  considered,  an  author's  copy- 
"  right  ought  to  be  esteemed  an  inviolable  right,  csta- 
"  Wished  in  sound  reason  and  abstract  morality.'  It  is 
"  unnecessary,  for  the  purpose  of  showing  my  views 
"  upon  this  branch  of  the  case,  to  add  any  thing  more. 
"  In  my  judgment,  every  principle  of  justice,  equity, 
"  morality,  fitness,  and  sound  policy,  concur  in  protect- 
"  ing  the  literary  labours  of  men  to  the  same  extent 
"  that  property  acquired  by  manual  labour  is  protected." ' 


LITERARY  PROPERTY.  73 


CHAPTER    VII. 

Progress  of  opinion  in  France — Law  of  the  National 
Convention — Of  the  Empire — Uncertainty  of  dura- 
tion— Opinion  of  Mons.  Bossangc — Of  the  Journal 
dcs  Debats — Copyright  in  Russia — In  Norway  and 
Sweden — In  the  Germanic  Confederacy — Resolutions 
adopted  by  the  Germanic  Diet,  in  November,  1837 — 
Prussia. 

A  pamphlet  lately  written  in  Paris  by 
Mons.  Bossange,  an  eminent  bookseller, 
contains  the  following  sentence,  which  in- 
dicates the  progress  of  opinion  in  that 
country  : 

"  La  justice,  le  bon  sens  et  l'equite 
"  veulent  que  la  proprietc  litteraire  ne  soit 
"  plus  un  mensonge  sous  forme  de  conces- 
"  sion  temporaire.  11  faut  qu'  elle  soit  une 
"  propriete  garantie  par  les  lois,  inviolable 
"  et  a  toujours  :"  that  is  to  say,  "  Justice, 
"  common  sense  and  equity  require  that 
7 


74  REMARKS    ON 

"  literary  property  shall  no  longer  be  a 
"fallacy  under  the  form  of  temporary 
"  grant.  It  ought  to  be  a  sacred  and  per- 
"  petual  property  guaranteed  by  law." 

The  French  law  secures  the  usufruct  to 
the  author  during  his  life,  and.  to  his  chil- 
dren for  twenty  years  after  his  death. 
This  seems  a  beneficial  term  ;  but  it  may 
end  one  day  after  the  publication  of  a 
book,  or  sooner,  for  an  author  may  die 
without  children  the  day  after  his  book  is 
published,  or  while  it  is  in  press.  This 
uncertainty  must  render  literary  property 
very  worthless,  particularly  to  an  author 
who  has  no  children. 

The  French  law  of  copyright  originated 
in  the  National  Convention  on  the  19th  of 
July,  1793;  this  was  the  exception  which 
proved  the  general  rule  of  the  rapacity  of 
that  body,  and  it  granted  to  authors  the 
exclusive  property  of  their  works  during 
their  whole  life,  and  secured  the  same  ex- 
clusive right  to  their  heirs,  for  the  space  of 
ten  years  after  the  death  of  the  authors. 
The  empire,  that  is  Napoleon,  on  the  5th 


LITERARY  PROPERTY.  75 

of  February,  1810,  modified  the  decree  of 
the  Convention,  and  declared  that  the  chil- 
dren of  authors  should  enjoy  the  right  for 
twenty   years    after   the   death   of   their 
parents;  thus  showing  the  sincerity  of  his 
celebrated  answer  to  Madame  De  Stael, 
when  she  asked  him,  "  what  woman  de- 
served most  of  her  country?"  and  he  re- 
plied "  she  who  has  the  greatest  number  of 
children."  This  law  is  more  unequal  than 
that  of  the  Convention,  for  a  multitude  of 
persons  die  without  children,  where  one 
dies  without  heirs;  and  perhaps  in  alter- 
ing the  law,  Napoleon  had  it  as  much  in 
view  to  encourage  the    multiplication  of 
soldiers  as  of  books      It  certainly  holds 
out  but  small  encouragement  for  a  bache- 
lor to  write  a  book,  as  publishers  will  not 
give  much  for  property  held  by  so  slight  a 
tenure  as  a  single  life;  and  such  an  author 
would  not  be  able  to  compete  with  the 
father  of  a  family,  in  the  sale  of  his  literary 
ware.     Thus  that  great  destroyer  offered 
a   premium  to   bachelor  authors  to   get 
themselves  wives,  that  they  might  help  to 


76  REMARKS  ON 

fill  some  of  those  awful  chasms  created  by 
his  cannon. 

Our  law  gives  the  author  a  greater  value 
in  his  copyright ;  for,  first  he  has  a  fixed 
term  of  twenty-eight  years,  whether  he 
live  or  die,  which  he  can  use  or  assign ; 
and  secondly,  a  contingent  term  of  four- 
teen years  more,  in  case  he  or  his  wife 
or  child  survive  the  first  term.  Whether 
this  contingent  term  be  assignable  before 
the  expiration  of  the  first  term,  seems  un- 
certain. 

The  opinion  of  Mons.  Bossange  is  sup- 
ported by  a  writer  in  the  Journal  des 
Debats  of  5th  November,  1836.  In  dis- 
cussing the  remedy  for  the  evils  arising 
from  the  present  defective  state  of  the  law 
of  Literary  Property,  he  says,  "  Le  remede 
"  qui  se  presente  le  premier  a  l'idee  con- 
"  sisterait  a  faire  assimiler  par  le  droit  des 
"  gens  la  propriete  litteraire  a  toutc  autre 
"  propriete,  de  sorte  que  Pecrivain  ou  le 
"  lib r aire  qui  le  represente  fussent  proteges 
"  partout  contre  la  spoliation  au  meme 
"  titre  que  le  negociant."     That  is  to  say, 


LITERARY  PROPERTY.  77 

"  The  remedy  that  is  first  suggested  to  the 
"  mind,  would  consist  in  placing  literary 
"property  on  the  same  footing  with  every 
"  other  kind  of  property,  by  the  law  of 
"  nations ;  so  that  the  author,  or  the  book- 
"  seller  who  represents  him,  should  enjoy 
"  every  where  the  same  protection  against 
"  spoliation  as  the  merchant." 

It  is  said  in  page  69,  volume  X.,  of  the 
American  Jurist,  that,  "  in  Russia  every 
"  author,  or  translator,  has  the  exclusive 
"  copyright  during  his  life,  and  his  heirs 
"  enjoy  the  same  privilege  for  twenty-five 
"  years  after  his  death.  In  Norway  and 
"  Sweden  the  copyright  is  perpetual" 

"  The  copyright  is  also  perpetual  in 
"  Germany,  the  very  country  where  the 
"  art  of  printing  was  invented.  But  in 
"  Germany  an  author  has  to  labour  under 
"  this  inconvenience,  viz.  that  his  copy- 
"  right  only  extends  to  the  state  in  which 
"  it  has  been  granted." 

I  am  not  sure  that  the  Jurist  is  accurate 
in  stating  that  copyright  is  perpetual   in 
Germany,  for  the  Encyclopaedia  Ameri- 
7* 


78  REMARKS  OX 

cana,  one  of  whose  editors  is  a  German, 
says  that,  "  in  Germany,  the  laws  respect- 
"  ing  copyright  vary  in  the  different  coun- 
"  tries ;  but  in  general  there  is  no  fixed 
"  time.  The  copyright  is  almost  always 
"  given  for  the  lifetime  of  the  author." 
In  a  pamphlet  on  Literary  Property, 
lately  published  in  Paris,  by  Ambroise- 
Firmin  Didot,  it  is  stated  in  a  note  to  page 
13,  that,  "  La  propriete  literaire  en  Alle- 
"  magne  est  perpetuelle  et  transmissible,* 
"  comme  toute  autre  espece  de  propriete :" 
that  is,  that  literary  property  in  Germany 
is  perpetual,  and  passes*  like  every  other 
kind  of  property.  Here  is  certainly  a  dis- 
crepance between  the  witnesses ;  but,  whe- 
ther it  be  for  life  or  forever,  and  whether 
it  be  identical  or  different  in  the  thirty- 
eight  states  at  present  united  in  the  Ger- 
manic Confederation,  we  are  informed 
that  all  Germany  is  at  present  intent  upon 
improving  the  condition  of  literary  pro- 


*  I  suppose  this  means,  by  purchase  and  descent. 


LITERARY  PROPERTY.  79 

perty,  by  the  passing  of  the  following  reso- 
lutions in  the  Germanic  Diet,  on  the  9th 
November  last : — 


"  Article  I.  Literary  productions  of  every  kind  as 
"  well  as  works  of  art,  whether  already  published  or 
"  not,  shall  not  be  multiplied  by  mechanical  means 
"  without  the  consent  of  the  authors  or  artists,  or  those 
"to  whom  they  may  have  transferred  their  rights. 
"Art.  2.  The  rights  above  mentioned  shall  pass  to  the 
"  heirs  or  representatives  of  the  authors  or  artists,  or 
"  those  to  whom  they  have  been  transferred,  and  when 
"  he  who  brought  out  the  work,  or  he  who  is  the  editor, 
"  is  named,  this  right  shall  be  recognised  and  protected 
"  in  all  the  States  of  the  Confederation,  for  a  period  of 
"  ten  years  at  the  least,  This  period  shall  be  applicable 
"  to  literary  productions,  and  works  of  art,  which  have 
"  already  appeared  within  the  territories  of  the  Germa- 
"  nic  Confederation  during  the  twenty  years  which  have 
"  preceded  the  date  of  this  resolution,  when  these  pro- 
"  ductions  and  works  shall  be  published  anew,  reckon- 
"  ing  from  the  year  of  their  new  publication.  When 
"  works  arc  published  in  parts,  the  period  shall  be 
"  reckoned  from  the  publication  of  the  last  part.  Art. 
"  3,  allows  the  prolonging  of  the  shortest  period  of  copy- 
■  right  for  expensive  works  for  a  time  not  exceeding 
"  twenty  years.  Art.  4,  gives  to  authors  and  artists  a 
"  right  of  compensation  from  all  persons  who  may  pub- 
"  lish  surreptitious  copies  of  their  works,  and  declares 
"  that  such  surreptitious  copies,  as  well  as  all  the  mate- 
"  rials  used  in  their  production,  shall  be  seized  and 
"  destroyed.  Art.  5,  interdicts  the  sale  in  any  of  the 
"  States  of  the  Confederation,  of  all  surreptitious  works, 
"  whether  made  within  or  without  the  state  in  which 
"  they  are  otfered  for  sale,  and  declares  that  all  such 
"  sales  shall  be  liable  to  the  penalties  of  the  law.    Art.  6, 


80 


REMARKS  ON 


"requires  that  all  the  states  shall  communicate  to  the 
"  Diet  the  measures  they  shall  respectively  take  for 
"  enforcing  the  observance  of  the  foregoing  articles.  It 
"  also  reserves  to  the  Diet  the  power  of  deliberating, 
"  after  the  commencement  of  the  year  1842,  upon  the 
"  propriety  of  extending  the  term  of  the  rights  now 
"granted  to  literary  men  and  artists,  unless  circum- 
"  stances  should  render  an  earlier  re-consideration  of 
"  the  subject  necessary.  Another  separate  resolution 
"  reserves  the  question  of  the  rights  to  be  granted  to  the 
"  authors  of  musical  and  dramatic  works  and  composi- 
"  tions  to  future  consideration,  upon  a  report  about  to 
"  be  made  by  a  commission." 


By  these  resolutions,  all  works  printed 
in  one  of  the  states  of  the  German  Confe- 
deracy, will  be  protected  for  the  space  of 
ten  years  from  piracy  in  any  of  the  other 
states ;  which  is  a  protection  in  addition 
to  that  afforded  by  the  law  of  literary  pro- 
perty of  the  state  in  which  a  book  is  pub- 
lished. Unlike  the  statute  of  Anne,  the 
German  law  is  cumulative,  and  not  des- 
tructive. 

Previous  to  this  important  decree,  the 
authors  of  Schwartzburg-Sondershausen, 
&c.  were  subject  to  piracy  by  the  printers  of 
Hohenzollern-Siegmaringen,  &c.  because 
literary  property  in  each  of  the  thirty-eight 


LITERARY  PROPERTY.  81 

states,  was  protected  only  within  the  bor- 
ders of  said  state  by  its  own  laws ;  but 
this  wise  measure  adopted  by  the  Diet, 
which  secures,  for  a  considerable  period, 
to  the  authors  of  each  Germanic  state,  the 
collective  market  of  the  whole  confedera- 
tion, is  a  strong  proof  that  that  great  and 
enlightened  nation  will  soon  be  ready  to 
do  full  justice  to  the  owners  of  literary 
property. 

The  last  arrival  from  Europe  brings 
information,  that  the  king  of  Prussia  has 
published  a  law  much  more  favourable  to 
literary  property  than  that  of  the  Ger- 
manic Diet.  Prussia  possesses  an  enlight- 
ened system  of  education,  one  of  whose 
results  is  a  law  having  a  strong  tendency 
to  improve  the  national  literature. 


LITERARY  PROPERTY.  83 


CHAPTER    VIII. 

A  universal  republic  of  letters  should  be  cslablishcd — 
Its  advantages,  pacific,  literary,  intellectual,  reli- 
gious— Charily  sliculd  begin  at  home — and  then  may 
go  abroad — The  law  of  literary  property  should  be 
uniform  throughout  the  world — Free  trade  in  books. 

What  has  been  said,  seems  to  lead  to 
the  conclusion,  that  public  opinion  has 
made  such  progress  in  the  various  civili- 
zed nations,  as  would  justify  a  great  move- 
ment in  favour  of  establishing  a  universal 
republic  of  letters;  whose  foundation  shall 
be  one  just  law  of  literary  property  em- 
bracing authors  of  all  nations,  and  being 
operative  both  in  peace  and  war.  Besides 
the  great  impulse  that  would  be  given  by 
such  a  law,  to  the  improvement  of  litera- 
ture and  intellectual  cultivation,  the  fellow- 
ship of  interest  thus  created  among  the 
learned  men  throughout  the  world,  would 


84  REMARKS  ON 

in  time  grow  into  a  bond  of  national  peace. 
Authors  would  soon  consider  themselves 
as  fellow-citizens  of  a  glorious  republic, 
whose  boundaries  are  the  great  circles  of 
the  terraqueous  globe ;  and  instead  of 
lending  their  talents  for  the  purpose  of  ex- 
asperating national  prejudice  into  hostile 
feeling,  to  further  the  views  of  ambitious 
politicians,  they  would  exert  their  best 
energies  to  cultivate  charity  among  the 
numerous  branches  of  the  human  family, 
to  rub  off  those  asperities  which  the  faulty 
legislation  of  the  dark  ages  has  bequeathed 
to  the  present  generation,  and  to  extend 
the  blessings  of  Christianity  to  the  ends  of 
the  earth. 

Now,  since  charity  begins  at  home,  let 
us  first  do  justice  to  our  own  authors  by 
securing  to  them  either  a  perpetual  right 
of  some  sort,  or  else  a  term  considerably 
longer  than  that  they  now  enjoy.  It  would 
be  a  good  first  step,  for  Congress  to  ap- 
point a  committee  to  gather  information 
on  this  subject,  and  to  make  a  report  there- 
on at  the   next   session.     If  that  report 


LITERARY  PROPERTY.  85 

should  induce  Congress  to  secure  to  our 
authors  a  perpetual  right  or  a  very  long 
one ;  it  would  be  well  to  empower  the 
President  of  the  United  States  to  appoint 
commissioners  to  meet  (at  Berlin,  Oxford, 
Paris,  Frankfurt  on  the  Maine,  or  any 
other  place  that  may  be  agreed  upon,) 
such  commissioners  as  may  be  appointed 
by  other  nations,  to  negociate  for  the 
enactment  of  a.  uniform  law  of  literary 
property,  and  the  extension  of  its  benefits 
to  all  civilised  nations.  It  should  be  a  new 
chapter  of  the  Jus  Gentium,  and  should  be 
one  law  (iisdem  verbis,)  for  all  the  enact- 
ing nations,  extending  over  their  territo- 
ries in  the  same  manner  as  our  law  of 
copyright  extends  over  the  territories  of 
our  twenty-six  sovereign  states  ;  so  that 
an  entry  of  copyright  in  the  proper  office 
of  one  nation  should  protect  the  author  in 
all  the  others;  a  notice  of  such  entry  being 
printed  on  the  back  of  the  title  page.  The 
law  should  not  be  operative  until  several 
years  after  its  enactment,  that  capital  may 
flow  without  loss  into  the  new  channels. 
8 


86  REMARKS  ON 

A  free  trade  in  books  should  also  be 
established  between  the  contracting  par- 
ties ;  that  is  to  say,  importations  should  be 
allowed  every  where,  either  free,  or  sub- 
ject only  to  an  equal  duty,  levied  for  reve- 
nue and  not  protection ;  exportations 
should  not  be  stimulated  by  bounties,  nor 
importations  be  restrained  by  excessive 
imposts.  Domestic  production  should  not 
be  forced  to  a  rotten  ripeness  by  the 
manure  of  legislative  protection,  nor  the 
consumption  of  exotic  books  be  checked 
by  the  destructive  restraints  of  commer- 
cial jealousy;  but  authors  and  their  assigns 
should  be  absolutely  and  internationally 
free,  every  where,  to  print  or  import,  pro- 
vided their  books  contain  nothing  contra 
bonos  mores.  American  enterprise  would 
willingly  and  successfully  run  the  race  of 
competition  with  the  whole  world,  upon 
such  equal  terms  of  freedom. 

Whether  authors  should  have  1.  a  full 
•property  in  perpetuity,  or  2.  a  limited  pro- 
perty in  perpetuity,  or  3.  a  full  property 
for  a  limited  term,  or  4.  a  limited  proper- 


LITERARY  TROPE UTY.  87 

ty  for  a  limited  term,  or  5.  a  full  property 
for  a  limited  term,  succeeded,  by  a  limited 
property  in  perpetuity,  arc  questions  to  bo 
inquired  into  and  reported  upon  by  a  com- 
mittee of  Congress.  I  incline  to  the  belief 
that  authors  should  have  a  full  property 
in  perpetuity ;  that  is  to  say,  that  they, 
their  heirs,  and  assigns,  should  possess  the 
entire  control  over  their  works  for  ever ; 
because,  in  the  first  place,  I  think  that 
justice  demands  it,  and  in  the  next  place, 
that  it  would  conduce  greatly  to  the  moral 
and  intellectual  improvement  of  mankind, 
by  holding  out  a  sufficient  inducement  to 
men  of  talent  and  virtue,  to  devote  their 
lives  to  the  production  of  excellent  works  ; 
and  thirdly,  because  its  inevitable  conse- 
quence would  be  cheapness  in  the  pro- 
ducts of  literary  labour.  For  proof  of 
these  positions  see  pages  51  to  56. 


LITERARY  PROPERTY.  89 


CHAPTER    IX. 

Mon.  Bossange's  Suggestions  for  the  Improvement  of 
the  Law  of  Literary  Property — Author's  Property 
terminates  at  the  moment  it  becomes  available  for 
Profit — La  Fontaine  and  the  Rothschilds — Natural 
Deatli  of  Pirates  and  Piracy — Conclusion. 

As  it  is  not  probable,  however,  that  pub- 
lic opinion  will  yet  sustain  such  a  law,  I 
will  here  make  some  quotations  from  the 
pamphlet  of  Mons.  Bossange,  who  argues 
ingeniously  in  favour  of  the  fifth  proposi- 
tion above  stated,  viz.  a  full  property  for 
a  limited  term,  succeeded  by  a  limited 
property  in  perpetuity.  His  knowledge 
of  the  fate  of  the  works  of  French  authors 
had  led  him  to  the  conclusion,  that  a  book 
does  not  attain  a  great  circulation,  until  it 
is  freed  from  the  trammels  of  exclusive 
privilege  ;  ("  qu'un  ouvrage  ne  prend  son 
"  essor  que  des  qu'il  est  delivre  des  entraves 
8* 


90  REMARKS  ON 

"du  privilege  exclusif;")  that  is  to  say, 
under  the  present  laws,  until  the  author's 
right  has  terminated  ;  the  very  moment 
when  he  can  no  longer  profit  by  the  suc- 
cess of  his  labour:  he  proceeds,  "  Est  it 
"  possible  de  concilier  la  liberte  du  com- 
"  merce  et  le  droit  de  1'auteur  ?  Rien 
"  n'est  plus  facile ;  il  ne  s'agit  pour  cela 
"  que  de  changer  le  privilege  exclusif  tem- 
"  poraire  en  un  privilege  perpetuel  sur  les 
"  reimpressions  des  ouvrages  :"  Is  it  pos- 
sible to  reconcile  freedom  of  trade  with 
the  rights  of  authors  1  Nothing  is  easier  ; 
you  have  only  to  change  the  temporary 
exclusive  privilege  into  a  perpetual  one, 
(not  exclusive,)  over  all  new  editions : — 
"  Declarez  done  l'abolition  du  privilege 
"  exclusif,  permettez  a  tout  le  monde  I'im- 
"  pression  des  livres  quels  qu'ils  soient, 
"  mais  sous  condition  d'un  droit  a  payer 
"  chaque  fois  aux  auteurs  :"  Abolish  then 
the  author's  exclusive  privilege,  and  allow 
every  body  to  print  any  books  they  choose, 
on  condition  of  paying  a  small  allowance 
to  the  author  on  every  edition. 


LITERARY  PROPERTY.  91 

"  This  allowance,  he  thinks,  should  be 
"  very  small,  so  as  not  to  discourage  the 
"  reprinting  of  books ;  but  however  small 
"  it  may  be,  if  books  were  given  up  to  the 
"  energy  of  free  trade,  they  would  all  give 
"  good  returns,  except  the  bad  ones.  Open 
"  the  doors  and  let  out  industry,  and  she 
"  will  work  miracles,  which  experience 
"  has  already  proved." 

But,  continues  M.  Bossange,  "  if  it  be 
"  true  that  the  printing  of  books  should  be 
"  freed  from  all  restraint,  new  questions 
"  arise :  What  would  be  the  condition  of 
"  authors  ?  How  can  we  secure  the  exe- 
"  cution  of  the  contract  on  the  part  of  the 
"  publisher  1  How  shall  we  guarantee  the 
"  integrity  of  the  w7ork  1  The  answers 
"  seem  to  me  easy." 

"1.  As  to  the  work:  that  the  author 
"  may  have  time  to  correct  his  work,  and 
"  to  profit  by  the  trial  of  a  first  publica- 
"  tion,  no  one  should  be  allowed  to  re- 
"  print  his  book  without  his  express  per- 
"  mission,  until  ten  years  after  its  first 
"  appearance ;  and  after  that  period  no 


92  REMARKS  ON 

"  one  should  be  allowed  to  make  altera- 
"  tions,  suppressions,  or  additions,  without 
"  the  author's  consent. 

"2.  No  new  edition  should  be  offered 
"  for  sale  until  after  the  publisher  had  paid 
"  in  money  an  allowance  to  the  author  or 
"  his  assigns."  "  In  order  to  avoid  all  dis- 
"  pute,  this  allowance  should  be  fixed,  (by 
"  law,)  at  so  much  per  leaf,  according  to 
"  the  various  sizes,  or  at  so  much  per 
"  cent,  on  the  cost  of  fabrication  ;  and  lest 
"  it  should  be  said,  that  this  would  be 
"  valuing  all  books  at  the  same  rate  with- 
"  out  regard  to  merit,  I  remark  that  it  is 
"  not  the  greatness  of  the  author's  allow- 
"  ance,  (la  quotite  du  droit,)  which  swells 
"  the  amount,  but  the  number  of  copies 
"  worked  off."  *> 

"  3.  The  guarantee  of  the  performance 
"  of  the  contract  would  consist  in  giving 
"  a  new  activity  to  the  laws  already  in 
i(  existence." 

Mons.  Bossange  then  proceeds  to  recom- 
mend various  regulations  suited  to  the  state 
of  things  in  France,  but  which  would  not 


LITERARY  PROPERTY.  93 

suit  this  country.  To  show  the  advan- 
tages of  his  plan  he  gives  the  following 
illustration: — 

"  II  y  a  un  homme  qui  a  ecrit  un  petit 
"  volume  qui  se  lit  en  moins  d'une  matinee. 
"  Si  les  heritiers  ou  les  descendans  de  cet 
"  ecrivain  avaient  recu  un  droit  de  10 
"pour  100  sur  les  frais  de  fabrication  de 
"  toutes  les  reimpressions  qui  ont  ete 
"  faites  de  son  livre,  ils  seraient  toiis  fort 
"  riches ;  oui  la  famille  du  bonhomme  La 
"  Fontaine  serait  aussi  riches  que  la  famille 
"  Rothschild."  "  A  man  once  wrote  a 
"  little  book,  which  may  be  read  in  a  short 
"  forenoon.  If  his  heirs,  or  descendants, 
"  had  received  an  allowance  of  ten  per 
"  cent,  on  the  cost  of  all  the  copies  printed, 
"they  would  all  be  quite  rich;  yes,  the 
"  family  of  La  Fontaine  would  be  as  rich 
"  as  the  Rothschilds." 

He  also  states  another  advantage  in  the 
following  terms  : — "  A  cote  de  l'a vantage 
"  materiel,  on  trouverait  un  avantage  mo- 
"  ral  immense.  II  n'y  aurait  plus  ni  con- 
"  trefacteurs,  ni  contrefacons.    Et  n'est  ce 


94  REMARKS  ON 

"  rien  qu'un  delit  a  supprimer  de  la  liste 
"  malheureusement  trop  longue  des  delits  ?" 
"  Besides  the  material  advantage,  a  great 
"  moral  benefit  would  accrue  ;  pirates  and 
"  piracies  will  vanish ; — and  is  it  nothing 
"  to  blot  out  one  from  the  list  of  offences, 
"  unfortunately  too  long?" 

That  same  abolition  of  literary  piracy 
is  the  consummation  devoutly  wished  in 
France,  and  ought  to  be  desired  every 
where ;  and  it  would  be  attained  every 
where,  if  nations  would  grant  the  same 
security  to  the  property  produced  by 
brains,  as  they  extend  to  that  produced 
by  hands. 

I  stop  now,  because  I  am  afraid  I  have 
already  written  more  than  will  be  read, 
and  not  because  there  is  not  much  more 
to  be  said  on  this  subject ;  but,  to  use  the 
concluding  wTords  of  Mons.  Bossange's 
interesting  pamphlet: — "Je  m'arrete,  par- 
"  ce  que  ce  n'est  pas  en  quelques  pages 
"  qu'on  pourrait  epuiser  la  question,  et  que 
"  Je  n'ai  pas  pretension  de  le  faire.  J'ai 
"  seulement  voulu  apportcr  mon  grain  de 


LITERARY  PROPERTY.  95 

"  sable  dans  la  balance  au  moment  ou  la 
"  question  s'agite." 

"  Je  sais  que  les  objections  ne  manquc- 
"  ront  pas,  tant  les  idees  de  monopole  et 
"  de  privilege  obscurcissent  encore  les 
"  questions  les  plus  simple,  mais  j'ai  foi 
"  que  tot  ou  tard  raon  idee  germera.  Je 
"  crois  au  temps." 

"  I  stop,  because  the  question  cannot  be 
"  exhausted  in  a  few  pages,  nor  do  I  pre- 
"  tend  to  do  it.  I  only  wish  to  cast  my 
"  grain  of  sand  into  the  scales,  while  the 
"  beam  is  yet  balancing." 

"  I  know  that  objections  will  not  be 
"  wanting,  so  much  are  the  simplest  ques- 
"  tions  mistified  by  notions  of  monopoly 
"  and  privilege ;  but,  I  hope  that,  sooner 
"  or  later,  my  plan  will  germinate.  I  trust 
"  to  time." 


FINIS. 


COPYRIGHT; 


WRITTEN  DY 


JOSEPH  LOWE,  Esq. 

REPRINTED  FROM  NAPIER'S  SUPPLEMENT  TO  THE 
ENCYCLOPAEDIA  BRITTANICA. 

Copyright  denotes  the  property  which  an 
author  has  in  his  literary  works,  or  which  a 
bookseller,  or  any  other  person,  may  acquire 
bv  purchase, — a  property  founded,  in  eilher 
case,  on  the  exclusive  right  to  the  publication 
of  a  particular  work.  The  subject  involves 
two  important  inquiries;  one,  the  propriety 
of  the  obligation  imposed  hy  law  on  the  pub- 
lisher to  sacrifice  a  given  number  of  copies  to 
our  puhlic  libraries  ;  the  other,  a  much  more 
extensive,  and,  in  a  public  sense,  more  inter- 
esting question,  the  expediency  of  prolonging 
the  duration  of  the  exclusive  property  of  a 
book. 

9 


\)b  REMARKS  ON 

Delivery  of  Copies  to  Libraries. 

1.  Recent  discussions  have  made  the  public 
so  familiar  with  the  merits  of  the  first  ques- 
tion, that  we  shall  merely  give  our  readers  a 
short  history  of  the  facts  of  the  case.  Print- 
ing became  extensive  in  England  about  a 
century  after  its  discovery  ;  and  it  was  in  the 
year  1556  that  a  charter  was  granted  to  the 
Stationers'  Company,  an  incorporation,  con- 
sisting not  of  venders  of  stationary,  in  the 
present  sense  of  the  word,  but  of  booksellers 
and  printers,  who,  for  their  general  benefit, 
determined  to  keep  at  their  hall  a  register,  in 
which  should  be  entered  the  title  of  every  new 
book,  the  name  of  the  proprietors,  and  the 
successive  transfers  of  the  copyright.  By-laws 
were  enacted  by  the  company ;  fines  were 
levied  on  members  acting  in  contradiction  to 
their  regulations;  and,  in  the  course  of  time, 
these  resolutions  of  the  association  were  con- 
firmed by  a  well  known  measure  of  govern- 
ment, we  mean  the  licensing  act  of  1662;  an 
act  prohibiting  the  publication  of  any  book, 
unless  first  licensed  by  the  Lord  Chamberlain, 
and  entered  in  the  stationers'  register.  In 
1684  a  new  charter  was  issued  to  the  company, 
partly  for  the  purpose  of  securing  the  property 
of  books,  but  more  with  the  view  of  interpos- 
ing the  royal  interdict  on  any  publication  at 
variance  with  the  despotic  government  of 
Charles  II.  In  the  auspicious  reign  of  William 


LITERARY  PROPERTY.  99 

(1691),  this  act  was  repealed;  but  while  the 
liberty  of  the  press  was  restored,  the  door 
was  unluckily  thrown  open  to  infractions  on 
literary  property  by  clandestine  editions.  It 
was  in  vain  for  the  owner  of  a  copyright  to 
bring  an  action  against  the  trespasser:  he 
had  no  other  protection  than  common  law  ; 
he  could  recover  only  to  the  extent  of  the 
"  damage  proved ;"  that  is,  he  could  not  adduce 
evidence  of  the  tenth,  or,  perhaps,  twentieth 
part  of  the  damage  suffered,  as  he  could  not 
prove  the  sale  of  one  copy  out  of  twenty. 
This  led  to  applications  to  Parliament  in  1703 
and  1706  ;  but  no  act  was  passed  until  1709, 
when,  after  much  discussion,  the  sanction  of 
tl^e  legislature  was  given  to  a  bill,  of  which 
the  prominent  features  were  two  :  first,  an 
obligation  to  deliver  nine  copies  to  as  many 
public  libraries;  and  next,  a  provision  for 
guarding,  by  severe  penalties,  the  property  of 
a  copyright,  during  fourteen  years.  The 
public  libraries  entitled  to  the  receipt  of  a 
copy  each,  were, 

The  King's  Library,  now  transferred  to  the 
British  Museum. 

The  Bodleian  at  Oxford,  and  the  University 
Library  at  Cambridge. 

In  London,  Sion  College,  or  the  Library  of 
the  London  Clergy. 

In  Scotland,  the  libraries  of  the  Universi- 
ties of  Edinburgh,  Glasgow,  St.  Andrews,  and 


100  K EM ARKS  ON 

Aberdeen,  with  that  of  the  Faculty  of  Advo- 
cates. 

To  these  were  added,  by  a  subsequent  act, 
in  1791,  two  Irish  libraries,  viz.  Trinity  Col- 
lege, Dublin,  and  the  Society  of  the  King's 
Inns  in  that  city. 

The  delivery  of  nine  copies  of  every  new 
book  was  a  heavy  sacrifice,  and  booksellers 
were  indefatigable  in  their  efforts  to  evade  it ; 
delivering  at  one  time  only  a  single  volume, 
and  at  others  venturing  to  omit  the  ungracious 
duty  altogether.  Hence  a  necessity  for  new 
acts  of  parliament,  more  particularly  those  of 
1775  and  1791.  Still  these  acts  were  not 
sufficiently  positive  ;  and  it  having  been  deci- 
ded in  1798  (in  the  case  of  Beck  ford  v.  Hood), 
that  publishers  were  not  prevented  by  such 
irregularities,  from  obtaining  damages  for 
pirated  editions,  they  became  more  and  more 
remiss  in  their  deliveries.  At  last,  in  1811, 
the  University  of  Cambridge  having  determin- 
ed to  bring  the  question  to  an  issue,  brought 
an  action  for  the  non-delivery  of  Fox's  History, 
and  obtained  a  verdict.  The  booksellers, 
finding  that  this  act  was  now  no  longer  a  dead 
letter,  applied  to  parliament  ;  but  a  committee 
of  the  House  of  Commons,  appointed  in  March 
1813,  made  a  report  in  favour  of  their  oppo- 
nents; and  in  the  succeeding  spring  an  act 
was  passed,  confirming,  in  the  most  explicit 
terms,  the  claim  of  the  public  libraries,  who 


LITERARY  PROPERTY.  101 

were  not  even  required  to  pay  any  proportion 
of  the  price  of  such  books  as  they  thought 
proper  to  require. 

Term  of  Copyright;  its  successive  variations. 

2.  For  many  years,  we  might  more  pro- 
perly say  for  a  couple  of  centuries,  the  pro- 
perty of  a  book  seems  to  have  been  considered 
as  permanent  as  the  property  of  an  estate  ; 
shares  of  literary  works  being  bought  and  sold 
without  any  idea  of  their  expiring.  It  is  not 
till  1709,  that  we  discover  a  trace  of  inter- 
ference with  its  permanency,  the  act  of  that 
year  defending  it  against  intruders  during  four- 
teen years  and  no  longer.  The  limitation, 
however,  had  no  practical  effect;  copyright 
was  considered  permanent,  both  by  the  book- 
sellers and  the  public, — nay  by  three  out  of 
the  four  judges  of  the  Court  of  King's  Bench, 
in  the  celebrated  trial  ."Millar  r.  Taylor,  which 
took  place  in  1769,  and  led  to  a  very  memo- 
rable display  of  judicial  erudition.  The  plain- 
tiff charged  the  defendants  with  a  trespass,  in 
publishing  an  edition  of  Thomson's  Seasons, 
of  which  the  plaintiff  was  the  sole  proprietor. 
Lord  Mansfield,  with  Judges  Willesand  Aston, 
gave  an  opinion  in  favour  of  the  permanency 
of  copyright,  in  which  they  were  confirmed  by 
Judge  Blackstone  ;  but  one  of  their  brethren, 
Judge  Yates,  took  a  very  different  course,  and 
9* 


102  REMARKS  ON 

adhered  resolutely  to  the  literal  construction 
of  the  act. 

An  action  for  a  similar  trespass  was  some 
time  after  brought  before  the  Court  of  Ses- 
sion in  Scotland  ;  the  London  proprietor  of  a 
copyright  claiming  damages  for  an  infraction 
by  a  provincial  bookseller.  (Case  of  Hinton 
v.  Donaldson.)  Here  the  majority  of  the 
bench  were  adverse  to  the  opinion  formerly 
delivered  by  Lord  Mansfield,  and  discharged 
the  defendant  without  a  dissentient  voice, 
except  that  of  the  well  known  Lord  Monbod- 
do.  At  last,  in  the  session  of  1773-4,  the 
question  came  decisively  before  parliament, 
the  booksellers  having  brought  in  a  bill  for 
declaring  copyright  perpetual.  This  bill  pass- 
ed the  Commons,  but  was  thrown  out,  after 
much  debate,  in  the  Lords. 

Objections  and  Answers. 

To  avoid  perplexity,  we  shall  endeavour  to 
comprise  the  pros  and  cons  in  these  various 
discussions,  in  a  kind  of  regular  succession, 
adopting  the  plan  of  appending  a  rejoinder  to 
each  argument,  as  the  best  method  of  doing 
justice  to  both  sides. 

Objection.  Ideas  cannot  be  the  object  of 
property ;  they  are  not  visible,  tangible,  or 
corporeal.     (Judge  Yeates.) 

Answer.  Whatever  admits  of  exclusive 
enjoyment  may  be  property.     (Hargrave.) 


LITEJtAKV  l'KOt'KliTY.  108 

().  Another  person  may  arrive,  by  his  own 
process  or'  thought,  at  similar  conclusions, 
would  you  deny  to  him  what  you  granted  to 
his  predecessor  ? 

A.  There  is  very  little  apprehension  of  such 
a  coincidence ;  the  plans  and  the  results  of 
study  admit  of  as  infinite  variety  as  the  human 
countenance;  the  same  views,  or  the  same 
conclusions,  will  never  come  from  two  persons, 
or  even  from  the  same  person  at  different 
times,  in  the  same  language.  At  all  events, 
an  arbitrator  or  a  court  of  justice  can  be  at 
no  loss  to  decide,  whether  a  second  publica- 
tion on  the  same  subject  comes  within  the 
description  of  plagiarism. 

O.  A  literary  composition  is  undoubtedly 
the  property  of  the  writer,  so  long  as  it 
remains  in  MS. ;  but  by  the  act  of  publishing,* 
he  gives  it  to  the  world  ;  he  lets  the  bird  fly  ; 
his  property  is  gone.     (Judge  Yates.) 


*  The  rig-lit  of  an  author  in  his  copy,  (that  is,  his 
copyright,  in  modern  parlance,)  consists  in  an  exclu- 
sive privilege  of  making  a  profit  by  multiplying'  and 
selling  copies  of  his  work,  cither  per  se  or  per  alium. 
When  he  sells  printed  copies,  it  is  true,  lie  parts  with 
or  publishes  his  ideas  for  the  benefit  of  the  public,  who 
can  read  and  enjoy  them,  but  have  therefore  no  right  to 
multiply  copies  of  the  book;  they  can  sell  it,  or  keep  it, 
or  burn  it,  or  lend  it,  or  hire  it  out  for  pay,  but  have  no 


104  REMARKS    ON 

A.  He  gives  the  public  the  free  use  of  the 
knowledge  contained  in  his  book ;  but  this  is 
a  very  different  thing  from  the  profit  as  pub- 
lisher. The  ten  shillings  paid  for  a  volume 
entitles  the  reader  to  the  use  of  its  contents, 
but  can  certainly  give  him  no  claim  to  the 


right  to  multiply  it,  which  belongs  solely  to  the  author. 
He  lets  his  bird  fly,  and  his  property  in  that  particular 
bird,  (or  copy,)  passes  to  the  purchaser,  but  the  right  of 
multiplying  remains  in  the  author. 

Professor  Vethake,  in  page  22,  of  his  Political  Eco- 
nomy, says,  that  "  wealth  may  be  defined,"  "  to  con- 
"  sist  of  every  thing,  material  or  immaterial,  having 
"exchangeable  value;"  and  in  Chapter  IV.,  he  argues 
with  great  ability,  and  to  my  mind  convincingly,  that 
immaterial  products  are  capable  of  accumulation  and 
of  constituting  a  portion  of  capital. 

Every  copy  of  a  book  is  a  machine  which  is  capable, 
as  long  as  it  lasts,  of  creating  immaterial  products  hav- 
ing exchangeable  value;  namely,  the  agreeable  sensa- 
tions for  which  readers  arc  willing  to  pay.  It  is  the 
consumption  of  these  immaterial  products,  which  yields 
a  revenue  to  the  owner  of  a  circulating  liberty.  Thus 
is  shown  the  superiority  of  mental  over  manual  labour, 
because  it  yields  the  labourer  an  incorporeal  property, 
indestructible,  (except  by  legislative  spoliation,)  and 
yielding  him  income  by  the  very  act  of  furnishing  the 
public  with  a  multitude  of  beneficial  machines,  that  are 
constantly  creating  immaterial  products  of  exchange- 


LITERARY  PROPERTY.  105 

hundred  pounds  which  may  bo  expected  from 
a  new  edition.  (Lord  Mansfield,  Judges 
Willes,  Blackstone,  and  Aston.) 

O.  It  is  not  clear  that  common  law  ever 
sanctioned  the  exclusive  enjoyment  of  copy- 
right;  the  ordy  titles  appear  to  have  been  the 
royal  patent  and  the  license  of  the  Stationers' 
Company.     (Lord  Camden.) 

A.  It  seems  to  have  been  always  taken  for 
granted  by  Chancery  and  other  courts,  that 
an  exclusive  right  existed.  There  was  a  con- 
firmatory example  in  the  highest  quarter  ;  the 
kin^  is  perpetual  proprietor  of  the  right  of 
publishing  acts  of  Parliament  and  all  public 
documents.  (Lord  Mansfield,  Judges  Willes, 
Blackstone,  and  Aston.) 

O.  The  patentees  of  mechanical  inventions 
possess  but  a  limited  term  ;  none  of  them  ever 
advanced  a  claim  to  perpetuity.  (Judge 
Yates.) 

A.  Such  patentees  are  much  sooner  reim- 
bursed than  authors;  the  fruit  of  their  inven- 
tion is  of  a  more  direct  practical  application. 
Besides,  the  stranger  who  makes  a  duplicate 
of  a  machine,  incurs  a  much   greater  relative 


able  value.  These  facts  prove  that  dogma  to  be  absurd, 
which  teaches  that  a  thing  "cannot  be  the  object  of 
"  property,"  which  is  "  not  visible,  tangible,  or  corpo- 
«  reul."  P.  H.  N. 


106  REMARKS  ON 

expense  than  the  stranger  who  reprints  an 
edition  of  a  book, — in  the  one  the  materials 
form  the  chief  part  of  the  cost;  in  the  other, 
they  are  comparatively  insignificant,  and 
copies  may  be  multiplied  by  the  thousand. 

O.  The  statute  of  the  8th  of  Queen  Anne, 
expressly  limits  the  duration  of  copyright;  it 
enacts  that  the  protecting  penalties  shall  be 
in  force  during  fourteen  years,  and  no  longer. 
(Judge  Yates.) 

A.  This  is,  no  doubt,  the  apparent  mean- 
ing of  the  statute,  but  the  preamble  of  the  act 
declares,  that  it  is  passed  for  the  protection 
of  literature  ;  to  make  the  act  an  instrument 
for  curtailing  a  literary  privilege  would  cer- 
tainly be  at  variance  with  its  general  lan- 
guage.    (Lord  Mansfield.) 

O.  If  such  property  be  admitted  for  a  time, 
is  not  the  term  of  fourteen  years  sufficient  ? 
What  good  could  the  public  expect  from  the 
writings  of  men  so  selfish  as  to  call  for  a  per- 
petual monopoly  ? 

A.  Monopoly  is  not  the  proper  word ;  the 
object  may  be  attained,  as  will  be  shown  pre- 
sently, under  modifications  which  insure  to 
the  public  a  complete  supply  of  books  at  rea- 
sonable prices. 

O.  "  Glory,"  said  Lord  Camden,  "  is  the 
reward  of  science,  and  those  who  deserve  it 
scorn  all  meaner  views." 

A.  Reputation  is,  and  always  will  be,  the 


LITERARY  PROPERTY.  107 

grand  stimulus  to  literary  exertion,  but  it 
requires  long-continued  exertion  ;  and  if  we 
do  not  enable  a  writer  to  live  by  his  works, 
we  confine  the  possibility  of  acquiring  repu- 
tation to  a  very  small  class — to  the  rich,  or 
to  those  who  derive  an  income  from  other 
means.  Such,  in  fact,  has  hitherto  been  the 
case;  standard  works  have  been  attempted 
only  by  men  who,  like  Gibbon,  possessed 
patrimony,  or  who,  like  Robertson  and  Hume, 
arrived  at  the  possession  of  income  from  other 
sources.  No  one  imagines  that  our  military 
or  naval  officers  follow  their  profession  for 
the  sake  of  pay  ;  yet  no  one  would  propose  to 
abridge  it  on  the  ground  of  reputation  being 
their  primary  object. 

O.  "  It  was  not  for  gain,"  said  Lord  Cam- 
den, "  that  Bacon,  Newton,  Milton,  and  Locke, 
instructed  the  world." 

A.  Each  of  these  distinguished  men  were 
obliged  to  trespass  on  the  time  devoted  to  lite- 
rature, and  to  seek  an  income  from  public 
employments.  How  much  better  would  it 
have  been  could  they  have  given  an  undivided 
and  uninterrupted  attention  to  their  favourite 
pursuits  1 

In  comparing  these  various  arguments,  the 
balance  is  evidently  on  the  side  of  the  advo- 
cates of  exclusive  right  in  every  point  except 
one — the  interpretation  of  the  statute  of  Queen 
Anne.     There   the  words,  "  fourteen  yea-"- 


108  REMARKS  ON 

and  no  longer,"  are  too  pointed  to  admit  of 
the  construction  put  on  them  by  Lord  Mans- 
field. In  the  beginning  of  1774,  when  the 
question  came  before  the  House  of  Lords,  the 
judges  attended  and  delivered  their  opinions 
at  length.  Lord  Mansfield  advocating  the 
cause  of  permanency,  while  Judge  Yates,  now 
supported  by  his  brethren,  Baron  Eyre  and 
Baron  Perrot,  asserted  once  more  the  neces- 
sity of  limitation.  Thurlow,  at  that  time 
Attorney-General,  addressed  the  House,  as  a 
counsellor,  against  the  perpetuity,  and  found 
an  ardent  auxiliary  in  Lord  Camden ;  but 
the  opposite  side  was  ably  supported  by  Dunn- 
ing, by  Solicitor-General  Wedderburne,  and 
by  Lord  Lyttleton.  One  party  contended, 
that  fame  was  the  only  true  reward  of  literary 
exertion,  while  the  others  maintained,  that 
without  an  adequate  pecuniary  provision,  the 
public  would  remain  deprived  of  many  useful 
works.  The  House,  however,  appear  to  have 
been  alarmed  at  the  idea  of  perpetuity,  and 
finally  decided,  that  the  exclusive  right  should 
last  only  "  fourteen  years,  with  a  contingent 
fourteen,  if  the  author  happened  to  be  alive  at 
the  end  of  the  first  period." 

The  grand  error  on  the  part  of  the  book- 
sellers lay  in  demanding  perpetuity  instead 
of  prolongation.  The  idea  of  perpetuity  has 
in  it  something  very  serious,  and  will  not  be 
sanctioned  by  a  legislature  without  the  clear- 


LITERARY  PROPERTY.  109 

est  proof  of  public  advantage ;  it  would  be 
premature  to  ask  it  even  in  the  present  age. 
They  ought  to  have  urged  the  attention  of 
Parliament  to  the  number  of  years  required 
to  compose  a  standard  work,  and  to  the  far- 
ther length  of  time  necessary  to  give  it  eflec- 
tual  currency  ;  appealing  to  the  good  sense  of 
the  legislature,  whether  fourteen  or  even 
twenty-eight  years  were  not  wholly  inade- 
quate to  remunerate  these  multiplied  labours. 
Foiled  in  the  House  of  Peers,  the  book- 
sellers determined  to  do  what  men  always 
will  endeavour  to  do  when  unjustly  controlled 
— evade  that  which  they  cannot  resist.  They 
resorted  to  the  alternative  of  giving  an  osten- 
sible renewal  to  a  work,  by  adding,  at  the  end 
of  the  term  of  each  copyright,  notes  and  other 
appendages,  which  remained  their  property 
during  another  period  of  fourteen  years,  and 
afforded  them  a  kind  of  guarantee  in  two 
ways :  first,  because  a  competitor,  whatever 
ho  might  do  with  the  original  text,  could  not 
touch  the  addenda  ;  and,  next,  because  the 
great  body  of  publishers  residing  in  London 
act  as  a  corporation,  and  combine  to  give  cir- 
culation to  works  thus  edited,  to  the  exclusion 
of  rival  impressions. 

Partial  Prolongation  in  1811. 
The  law  continued  on  this  footing  for  forty 
years,   the   term   of  copyright  receiving  no 
10 


110  REMARKS  ON 

extension  till  1814.  On  that  occasion  it  was 
soon  apparent  that  the  universities  would 
carry  the  point  of  the  delivery  copies,  and  the 
only  alternative  was,  to  seek  an  indemnity  in 
an  extension  of  copyright  to  twenty-eight 
years  ;  that  is,  by  rendering  the  last  fourteen 
certain  .instead  of  contingent.  This  was 
obtained  ;  and  here  ends  the  historical  part  of 
our  sketch. 
Inquiry  as  to  the  advantages  of  a  farther  Prolongation. 

We  are  now  to  enter  on  the  grand  question, 
of  the  "  advantages  of  a  farther  prolongation 
of  the  term  of  copyright;" — a  question  that 
has  never  yet  been  brought  fully  before  the 
public,  and  which  requires  a  considerable 
share  of  previous  explanation. 

We  shall  begin,  by  examining  a  very  mate- 
rial point, — we  mean  the  dispositions  and 
habits  of  those  with  whom  authors  have  prin- 
cipally to  deal.  And  here,  from  long  familia- 
rity with  men  of  business,  we  entreat  the 
particular  attention  of  our  literary  brethren  ; 
for,  however  anxious  to  be  instrumental  in  pro- 
curing them  relief,  we  must  not  hesitate  to  point 
out  their  errors  or  misconceptions.  Of  the 
surprising  quantity  of  publications  issuing 
annually  from  the  press,  not  a  tenth  part  are 
the  production  of  writers  of  established  char- 
acter ;  the  rest  proceed  from  candidates  whose 
reputation  is  yet  to  make.  In  what  manner 
are  booksellers  to  form  an  estimate  of  the 


LITERARY  PROPERTY.  Ill 

mass  of  unknown  MSS.  thus  laid  before  them  ? 
Their  own  habits  are  not  those  of  study  but 
of  business,  and  they  must  consign  the  task  of 
examination  to  friends  who  have  been  called 
not  unaptly  "  literary  tasters."  Need  we  won- 
der that  the  patience  of  the  critic  should  be 
put  to  a  severe  test  by  the  mediocrity  of  the 
great  majority  of  these  performances,  and 
that  his  report  should,  in  general,  be  so  little 
decisive,  that  the  bookseller  is  led  into  the 
habit  of  putting  one  work  on  a  par  with  ano- 
ther, and  of  subjecting  them,  in  the  mode  of 
publishing,  to  the  coarse  application  of  a 
common  rule  ?  It  has  become  the  avowed 
practice  to  decline  any  other  terms  for  a  new 
work  than  those  of  defraying  the  paper  and 
print  in  return  for  the  manuscript,  and  in  the 
understanding  that  the  profit  of  the  edition, 
if  there  be  any,  shall  be  shared  between  the 
bookseller  and  the  author. 

Now,  this  plan  of  publishing,  however  na- 
tural in  the  present  state  of  the  law,  is  replete 
with  mischief  to  all  parties,  bringing  forth  a 
mass  of  books  which  ought  never  to  have  seen 
the  light,  and  which,  in  truth,  would  never 
have  been  published,  could  the  writer  or  pub- 
lisher have  forseen  their  failure.  It  is  a 
remarkable  fact,  disclosed  in  the  inquiries 
arising  from  a  late  parliamentary  discussion, 
that  only  "  one  publication  in  eight  is  found 
to  come  to  a  second  edition."     (See  Evidence 


112  UEMAUKS  ON 

taken  by  Copyright  Committee  in  1814.  The 
unfortunate  limitation  of  copyright  discour- 
ages literary  men  from  the  labour  necessary  to 
produce  standard  works ;  and  the  bookseller, 
tempted  to  assail  the  public  by  the  attraction 
of  novelty,  goes  on  publishing  books  by  the 
dozen,  in  the  hope  that  some  lucky  chance 
may  make  up  For  his  past  disappointments. 

All  this  shows  that,  in  the  great  majority 
of  cases,  the  contract  between  an  author  and 
a  bookseller  is  made  without  previous  data, 
and  is  nothing  more  nor  less  than  what  is 
commonly  termed  a  blind  bargain.  Dr. Paley, 
on  finishing  the  MS.  of  his  Moral  and  Poli- 
tical Philosophy,  tendered  the  copyright  of 
it  to  a  bookseller  for  300/.,  and  was  offered  in 
return  250/.,  exactly  in  the  way  that  a  cau- 
tious purchaser  takes  care  to  bid  for  unknown 
merchandise.  During  this  negoeiation,  it 
happened  that  a  brother  of  the  trade,  appris- 
ed of  the  value  of  Paley's  Work,  came  boldly 
forward  and  offered  1000/.  for  the  copyright. 
The  author  consenting  to  give  the  party  first 
in  treaty  the  previous  option,  the  latter  now 
saw  the  matter  in  a  new  light,  and  ended  by 
paving  four  times  the  amount  of  his  original 
offer. 

No  notion  is  more  general  among  authors 
than  that  booksellers  make  rapid  fortunes  at 
their  expense.  One  writer  has  published, 
that  Jacob  Tonsou  and  his  nephew  died  worth 


LITERARY  PROPERTY.  113 

£200,000,  (D'Israeli's  Calamities  of  Authors, 
Vol  I.  p.  20  ;)  and  not  one  reader  in  twenty 
will  stop  to  question  the  accuracy  of"  the  alle- 
gation. It  is  our  firm  belief  that  such  a  sum 
was  never  possessed  by  any  bookseller,  or 
parnership  of  booksellers,  that  ever  existed. 
Among  them,  as  in  all  lines  of  business,  there 
are  examples  of  considerable  capitals,  but 
these  are  only  realized  in  the  case  of  long- 
established  concerns,  and  after  a  progress  of 
acquisition  infinitely  slower  than  the  angry 
imagination  of  a  disappointed  author  allows 
him  to  believe.  In  his  eagerness  to  take  for 
granted  that  his  publishers  are  getting  rich 
at  his  expense,  he  forgets  the  history  of  the 
fathers  and  grandfathers  of  the  present  men, 
and  omits  to  mark  the  slow  steps  by  which 
they  paved  the  way  for  the  eventual  rise  of 
their  descendants.  He  fails,  likewise,  to  scru- 
tinize another  material  point,  namely,  the 
quantum  which  a  close  calculator  would  deduct 
from  the  estimated  fortunes  so  liberally  assign- 
ed by  current  report  to  booksellers.  The  lat- 
ter, like  all  men  in  business,  are  desirous  of 
passing  for  affluent ;  but,  if  so  few  publica- 
tions are  found  to  be  successful,  must  there 
not  necessarily  follow  a  large  abatement  from 
the  imagined  extent  of  their  annual  gains? 
It  is,  on  various  accounts,  a  matter  of  regret, 
that  the  limited  profits  of  the  bookselling  busi- 
ness should  not  be  better  understood  by  lite- 
10* 


114 


REMARKS  o:V 


rary  men.  The  discovery  of  it  would  remove 
the  rilm  from  their  eyes,  would  lessen  greatly 
their  habits  of  complaint,  and  would  lead  to 
cordial  co-operation  for  redress  of  their  com- 
mon grievances.  We  may  with  confidence 
assert,  that  a  small  offer  from  a  bookseller, 
as  in  the  case  of  Paley,  is  indicative,  not  of  a 
design  to  overreach,  but  of  an  apprehension 
that,  to  give  more,  would  be  to  injure  himself. 
On  the  other  hand,  we  are  by  no  means  dis- 
posed to  launch  out  into  a  panegyric  of  the 
liberality  either  of  particular  individuals,  or 
of  the  body  at  large.  Like  other  men  of  cal- 
culation, they  naturally  mete  out  their  ad- 
vances, not  by  attachment  to  the  writer,  but 
by  the  extent  of  the  expected  return.  A  large 
allowance  for  a  finished  book  denotes  a  confi- 
dence of  extracting  a  still  larger  from  the 
public,  while  the  scanty,  and  apparently  nig- 
gardly, payment  of  an  unknown  author,  is  a 
token  of  the  fear  and  trembling  with  which  a 
bookseller  handles  a  production  of  doubtful 
promise. 

The  customary  agreement  between  a  book- 
seller and  a  new  author  proceeds  as  follows  ! 
The  latter  having  prepared  a  work,  of  which 
he  has  high  hopes,  but  in  which  he  has  not 
had  either  guidance  or  advice,  sets  out  by 
making  an  offer  of  his  MS. ;  and,  after  some 
time  taken  for  consideration,  is  answered,  that 
his  name  not  being  yet  known  to  the  public, 


LITERARY  PROPERTY. 


US 


the  publishers  cannot  take  on  themselves  to 
make  him  a  payment  for  his  labour,  but  are 
willing  to  give  it  to  the  world  on  their  joint 
account.  This  leads  to  a  compact  in  terms 
somewhat  like  the  following: — 

It  is  agreed  between  .Messrs.  Y.  and  Com- 
pany, booksellers,  and  Mr.  Z.  that  Messrs.  Y. 
and  Company  shall  print  and  publish  for  their 
account,  jointly  with  Mr.  Z.  in  two  volumes 

octavo,  his  historical  work  on Mr. 

Z.  supplying  the  manuscript',  and  Messrs.  Y. 
and  Company  taking  on  themselves  the  paper, 
printing,  and  other  publishing  charges.  The 
statement  of  the  account  to  be  made  up  every 
year  at  midsummer;  and  when,  after  deduct- 
ing the  various  publishing  expenses,  there 
shall  appear  a  balance  of  profit,  the  same  to 
be  equally  shared  between  Mr.  Z.  and  Messrs. 
Y.  and  Company.  The  books  to  be  accounted 
for  at  the  regular  trade  sale  price. 

The  publication  now  takes  place,  and  in  a 
twelve-month  after,  an  account  is  made  up;  in 
the  following  form  : — 


Dr.  History  of  - 

Printing  CO  sheets 


J&120    0    0 

Over-running  and 

corrections,  9    o    " 

Paper,  '.!(i  reams 

at  30s.  -  -  135  it  0 
Advertising,  •  30  0  0 
Boards  for  .',5  copies 

delivered     to    the 

author's  friends,        ~*  10    0 


£896  10    0 


by  Mr.  /.. 


Cr. 


750  Copies  printed) 
retail  price  21s. 
the  price  to  the 
trade  15s.  150  co- 
pies sold  and  de- 
livered in  sheets, 
at  l.js.        -  £112  in 

Balance  at  Dr.,  car- 
ried to  next  year  1-1    0 


116  REMARKS  ON 

Next  year  the  account  is  considerably 
shorter,  the  charges  consisting  onl)'  of  adver- 
tising and  interest  of  money  ;  but  the  attrac- 
tion of  novelty  having  gone  off,  the  sale  is 
also  less,  and  does  not  probably  exceed  eighty 
copies,  leaving  still  an  adverse  balance  of 
£100.  The  bookseller  goes  on  with  mercan- 
tile punctuality  to  render  him  a  farther  ac- 
count, but  the  sale  is  now  in  a  state  of  pro- 
gressive decrease,  and  does  not,  for  the  third, 
year,  exceed  fifty  copies,  leaving  still  an  unfa- 
vourable balance  of  £80.  The  author  now 
loses  patience,  and  entreats  the  bookseller  to 
relieve  him  of  all  responsibility,  by  taking 
over  the  remaining  copies,  and  considering 
the  account  closed.  Such  is  the  fate  of  five- 
sixths  of  the  books,  great  and  small,  that 
come  before  the  public.  Composed  without 
the  benefit  of  experience,  they  are  unprofita- 
ble to  the  publisher,  uninstructive  to  the  rea- 
der, and  discouraging  to  the  author.  If  we 
are  suspected  of  stating  an  extreme  case,  let 
another  be  supposed,  in  which  the  author  is 
less  of  a  novice,  and  in  which  a  bookseller, 
from  confidence  equally  in  him  and  in  the 
subject,  ventures  to  make  an  advance  of 
money,  and  to  agree  to  pay  a  fixed  price  for 
the  copyright.  An  arrangement  is  made  for 
bringing  out  the  work  against  a  given  time, 
and  the  writer  proceeds  with  all  the  ardour 
attendant   on   a   new   enterprise.      Authors, 


LITERARY  PROPERTY.  11? 

however,  wore  never  remarkable  for  accu- 
rate calculations,  or  rather  their  undertak- 
ings are  almost  always  found  to  require  more 
time  and  labour  than  is  anticipated  : — the  pie- 
scribed  time  expires,  and  the  bookseller 
agrees  to  postpone  it  for  another  twelve- 
month. This  also  passes  away  ;  the  publish- 
ing season  draws  near;  the  work  is  still 
unfinished,  but  the  author  is  impatient  of  far- 
ther labour,  and  the  bookseller  thinks  it  high 
time  to  get  a  return  for  his  money.  The 
work  goes  to  press,  and  comes  out  without 
either  a  correction  or  an  acknowledgment  of 
its  imperfections,  unless  the  author  be  parti- 
cularly modest,  in  which  case  the  public  is 
requested,  in  a  well  turned  apology,  to  make 
allowance  for  his  multiplied  avocations  and 
the  urgent  nature  of  the  subject.  This  is  the 
case  with  almost  all  the  better  class  of  our 
new  publications  ;  the  sale,  in  such  cases,  is 
somewhat  less  unfavourable  than  the  speci- 
men given  above;  but  four  or  five  years  are 
requisite  to  run  off  an  edition,  and,  on  coming 
a  second  time  before  the  public,  it  is  neces- 
sary for  the  author  to  do  what  should  have 
been  done  at  tivst — revise  and  correct  the 
whole.  A  second  edition  comes  out,  but  under 
considerable  disadvantages  ;  the  attraction  of 
novelty  is  gone  or  greatly  impaired  ;  the  num- 
ber of  readers  is  lessened  by  those  who  have 
purchased  copies  of  the  first  edition,  and  the 


118  REMARKS  ON 

character  of  the  book  has  been  estimated,  in 
Reviews  and  elsewhere,  by  an  unfavourable 
standard.  The  bookseller  is  thus  curtailed  of 
profit,  the  author  of  reputation,  yet  each  has 
the  happy  gift  of  throwing  blame  off  his  own 
shoulders;  the  publisher  attributing  the  fai- 
lure to  the  distraction  of  the  public  attention 
by  some  unlucky  novelty,  while  the  other 
vents  his  complaints  on  the  incurable  frivolity 
of  the  age.  In  truth,  neither  of  the  parties 
is  much  to  blame  ;  their  conduct  is  the  natu- 
ral result  of  their  situation  ;  the  haste  of 
authors  and  the  acquiescence  of  the  book- 
sellers are  mainly  owing  to  the  short-lived 
tenure  of  the  fruits  of  their  labour;  the  habits 
of  the  one  and  the  calculations  of  the  other 
having  been  all  along  adapted  to  this  state  of 
things. 

Is  there  then  no  remedy  for  so  mortifying 
a  state  of  things  ?  no  method  of  relieving  the 
public  from  such  an  unprofitable  expenditure 
of  time  and  attention? — Some  have  been  desi- 
rous to  call  in  the  patronage  of  government, 
and  have  argued,  that  literature  can  never, 
like  the  coarser  objects  of  industry,  find  ade- 
quate repayment  in  the  fruit  of  its  exertions. 
It  is,  indeed,  a  current  subject  of  complaint 
among  authors,  that  there  should  not  be  a 
larger  proportion  of  provisions  for  life  appro- 
priated to  literary  men.  Scd  non  tali  auxi- 
liu — whatever    be   their   distress,  we   beg  to 


LITERARY   PROPERTY.  119 

deprecate    any    interference    on    the    part    of 
government.     No  engine  h  so  formidable  as 

the  press  in  the  hands  of  an  arbitrary  or  art- 
ful ruler.  Look  at  the  degraded  picture  exhi- 
bited, during  a  succession  of  years,  by  the 
French  press  ;  and  you  will  li;j>l  nun,  who, 
under  the  auspices  of  freedom,  would  have 
acted  an  independent  part,  tempted,  threaten- 
ed, and  gradually  compelled  to  become  the 
advocates  of  a  tyrant,  and  to  participate  in 
the  guilt  of  rivetting  the  chains  of  their  coun- 
trymen. It  is  in  vain,  even  for  a  liberal  legis- 
lature or  a  disinterested  sovereign,  to  attempt 
to  make  up  for  the  deficient  reward  of  literary 
labour,  by  granting  pensions  or  creating  places 
for  men  of  letters.  These  measures,  though 
apparently  beneficial,  carry  with  them  all  the 
disadvantages  oPirregular  and  unnatural  inter- 
ference. A  literary  man  promoted,  as  is  not 
unusual  in  France,  to  a  government  employ- 
ment, is  withdrawn  from  his  proper  sphere  of 
utility  ;  he  becomes  lost  to  general  reasoning 
and  liberal  views  amid  the  endless  details  of 
practical  routine.  The  pension  granted  to 
Johnson  by  Lord  Bute  was  generally  approv- 
ed, both  as  the  fair  reward  of  past  industry, 
and  as  a  seasonable  relief  to  pecuniary  diffi- 
culty ;  but,  what  was  the  consequence?  it  fos- 
tered his  natural  indolence,  prevented  the 
composition  of  farther  works,  and,  by  enabling 
him  lo  live  in   idleness,   rendered    him  perpe- 


120  REMARKS  ON 

lually  dissatisfied  willi  liimself.  Had  the  pro- 
perty of  his  literary  labour  been  permanent, 
he  would  have  received  twice  as  much  from 
the  booksellers,  and  might  have  continued  his 
proper  pursuits  under  circumstances  progres- 
sively improving,  without  incurring  the  humi- 
liation of  dependence,  or  degrading  his  name 
by  the  composition  of  party  pamphlets. 

It  is  equally  vain  for  zealous  friends  to 
attempt  making  up  for  the  inadequacy  in  ques- 
tion, by  procuring  private  subscriptions  for  a 
work  ;  for,  whatever  may  be  the  success,  in 
a  pecuniary  sense,  the  step  is  humiliating  to 
the  author,  is  liable  to  abuse,  and  is,  besides, 
an  interference  with  the  proper  business  of  a 
bookseller.  .One  of  the  most  splendid  of  such 
examples  was  Pope's  translation  of  Homer  ;  an 
undertaking  where  the  importance  of  the  task 
and  the  talents  of  the  translator  called  equally 
for  liberal  remuneration.  Pope  was  perfectly 
ready  to  sacrifice  several  precious  years  for 
the  sake  of  eventual  competency,  and  he  found 
in  his  friends,  particularly  in  Swift,  a  most 
zealous  promoter  of  his  views.  Proposals 
were  circulated,  liberal  subscriptions  were 
obtained,  and  a  favourable  bargain  made  with 
the  bookseller:  the  translation  of  the  Iliad 
was  executed,  and  will  for  ever  remain  a  proof 
of  the  perseverance  to  which  an  author  may 
be  prompted  by  ihe  love  of  fame,  when  relieved 
from  pecuniary  pressure,  and  enabled  to  give 


LITERARY  PROPERTY.  121 

long  continued  labour  to  his  task.  So  far  all 
was  well ;  but  tbe  success  of  this  first  under- 
taking induced  Pope  to  resort  to  the  same 
method  for  publishing  a  translation  of  the 
Odyssey,  which  proved  far  inferior ;  being 
performed  either  hastily  by  himself,  or  by 
two  coadjutors,  whose  respective  contributions, 
though  not  altogether  concealed,  were  unfairly 
represented  to  the  world.  Could  such  an 
abuse  have  taken  place  had  subscription  been 
out  of  the  question,  and  had  the  remuneration 
of  Pope  been  proportioned  to  the  eventual  sale 
of  his  book?  The  public  would,  in  that  case, 
have  had  a  translation  of  equal  merit  with  its 
predecessor,  and  Pope  would  have  been  spared 
the  reproach  of  a  literary  imposition.  The 
least  exceptionable  mode  of  rewarding  literary 
eminence  is  by  church  preferment  in  the 
southern  part  of  the  kingdom,  and  by  admis- 
sion to  professorial  chairs  in  the  north.  But 
the  extent  of  both,  particularly  of  the  latter, 
is  limited,  and  does  not  always  place  a  man 
in  that  station  where  he  can  be  most  useful, 
or  in  the  mode  of  employment  most  congenial 
to  his  habits.  Both  besides  require  more  of 
connection,  of  interest,  and  of  management, 
than  commonly  falls  to  the  lot  of  a  retired 
student. 

The  only  effectual  plan  is,  to  find  the  means 
of  relief  in  the  prosecution  of  literature  itself; 
to   relieve  it   from  existing  shackles,  and  to 
11 


122  REMARKS  ON 

allow  every  writer  to  reap  his  reward  in  the 
sale  of  his  books,  exactly  as  we  do  in  other 
kinds  of  employment.  This  is  all  that  litera- 
ture wants,  and  all  that  it  is  good  for  her  to 
have.  She  will  then  make  no  claims  to  patro- 
nage from  Government — no  appeal  to  the 
subscriptions  of  private  friends — nor  will 
appointments  in  the  church,  or  at  universities, 
be  an  object  of  indecent  contention;  they  will 
be  coveted  by  a  smaller  number ;  by  those 
only  whose  particular  habits  fit  them  for  such 
situations.  Perpetuity  of  copyright  is  as 
much  the  right  of  the  author  or  purchaser  of 
a  book,  as  of  the  builder  or  purchaser  of  a 
house  ;  and  the  public  will  never  reap  its  full 
harvest  of  advantage  from  literary  composi- 
tions till  the  law  be  made  to  confirm  the  claim 
of  equity.  But,  as  this  opinion  is  as  yet  far 
from  general,  the  true  plan  is  to  desist  from 
pressing  it  to  its  extent,  to  demand  only  the 
grant  of  a  specific  period,  and  to  leave  the 
public  to  enact  perpetuity  at  a  future  time, 
when  it  shall  have  had  practical  and  undoub- 
ted evidence  of  the  beneficial  effect  of  prolon- 
gation. 

State  of  Copyright  on  the  Continent. 
Let  us  first  see  if  we  can  take  a  useful 
lesson  from  the  example  of  our  continental 
neighbours.  In  France,  copyright  has  of  late 
received  several  prolongations  ;  at  first  limit- 
ed to  tiie  author's  life,  it  was  extended  in  1793 


LITERARY  PROPERTY.  1^3 

to  ten  years,  atid  in  1S05,  to  no  less  than 
twenty  years  after  his  death.  Taking  twenty 
years  as  the  average  of  life  after  the  publica- 
tion of  a  work,  we  have  here,  in  the  whole,  a 
medium  term  of  forty  years,  which  is  consi- 
derably longer  than  ours.  I5ut  the  grand 
practical  example  is  to  he  found  in  Germany. 
In  that  country,  copyright  is  perpetual ;  and 
though  the  sales  of  editions  are  very  limited, 
in  consequence  of  the  facility  of  importing 
clandestine  impressions,  from  the  territory  of 
neighbouring  princes,  such  is  the  benefit  of 
permanency,  that  Germany  sends  forth  more 
works  of  lasting  use  than  any  other  country 
in  Europe.  Compare  their  performances  in 
Statistics  and  Geography  with  those  of  France, 
England,  or  Italy,  and  we  shall  be  surprised 
at  their  superior  research,  and  their  careful 
examination  of  the  necessary  documents.  It 
is  at  present  proposed  to  effect  a  most  impor- 
tant improvement  in  the  state  of  hook  pro- 
perty in  Germany,  by  rendering  the  protection 
general  throughout  the  empire  ;  and  by  enact- 
ing, that  a  clandestine  edition  published  in  a 
different  state  shall  he  subject  to  the  same 
penalties  as  if  published  in  the  country  of  the 
writer.  The  great  powers,  Austria  and  Prus- 
sia, are  understood  to  favour  this  measure, 
and  some  objections  raised  by  the  lesser  states 
are  likely  to  be  overcome  ;  uwd  if  the  decision 
of  the  diet  be  speedy,  Germany  will  take  the 


124  REMARKS  ON 

lead  of  all  Europe  in  the  production  of  stan- 
dard works. 

Inadequacy  of  our  present  term. 
There  is  evidently  no  reason  that  the  term 
of  book  property  should  have  a  reference  to 
the  probable  time  of  an  author's  life ;  it  is 
much  more  equitable  to  prolong  it  to  a  consi- 
derable time  after  his  death,  as  a  provision  for 
a  family  deprived  of  its  natural  protector. 
Our  present  term  of  twenty-eight  years  ap- 
pears, at  first  sight,  no  inconsiderable  tenure  ; 
but  the  circulation  of  literary  works  is  often 
only  beginning  to  become  considerable  when 
the  property  is  drawing  to  a  close.  Paradise 
Lost  remained  in  comparative  obscurity  for 
many  years  ;  and,  on  coming  nearer  our  own 
times,  we  find  Hume's  early  works,  and  even 
the  first  volume  of  his  History,  falling  dead- 
born  from  the  press  ;  and  Smith's  Wealth  of 
Nations,  the  labour  of  half  a  lifetime,  going 
tb rough  only  two  editions  in  the  course  of 
eight  years.  No  wonder,  then,  that  a  book- 
seller should  pause  before  giving  a  large  price 
for  a  short-lived  possession.  But,  prolong 
copyright,  and  you  relieve  him  from  the 
necessity  of  laying  stress  on  the  sale  of  this 
or  that  season ;  you  direct  his  hope  to  even- 
tual and  permanent  circulation  ;  and  you  put 
it  in  his  power  to  pledge  himself  for  a  consi- 
derable sum,  because  he  is  justified  by  the 
prospect  of  the  return.     An  author,  thus  sup- 


LITERARY  PROPERTY.  125 

ported  and  encouraged,  will  no  longer  scruple 
to  give  year  after  year  to  studying  a  subject 
thoroughly,  and  bringing  out  bis  book  in  a 
finished  state. 

We  shall  next  put  the  principal  suggestions 
which  have  occurred  to  us  into  a  specific  form, 
less  under  the  idea  of  their  funning  the  basis 
of  a  legislative  measure,  than  as  a  convenient 
mode  of  stating  the  substance  of  a  case. 
Sketch  of  the  proposed  alteration. 

Grant,  in  all  books  to  be  hereafter  publish- 
ed, a  prolongation  of  copyright  for  twenty-two 
years,  making  in  the  whole  fifty  years.  Ap- 
point a  commission  (with  power  of  reference 
to  a  jury)  to  act  in  all  cases  where  the  owners 
of  copyright  withhold  publication,  or  confine 
it  to  an  expensive  form.  Empower  this 
commission  to  order  the  publication  of  such 
works,  in  the  form  which  they  judge  most 
proper,  and  without  any  other  obligation 
towards  the  proprietor  of  the  copyright  than 
that  of  paying  over  to  him  or  his  representa- 
tives the  proportion  of  profit  accruing,  by  the 
practice  of  the  trade,  to  the  owner  of  a  copy- 
right. (Quarterly  Review,  Vol.  VIII.  p.  112.) 
The  power  of  this  commission  to  be  opera- 
tive only  for  the  additional  term  (twenty-two 
years),  without  application  to  the  existing 
twenty  eight. 

The  act  of  1814  would  thus  remain  in  force. 
— Should  it  however  appear,  in  the  progress 
11* 


126  REMARKS  ON 

of  the  disscussion,  that  the  additional  prolon- 
gation made  it  necessary  to  provide  tor  the 
interest  of  the  public,  or  of  the  minor  book- 
sellers, the  power  of  the  commission  might  be 
made  applicable  to  a  certain  portion  of  the 
twenty-eight  years.  Such  interference  would 
probably  not  be  wanted,  the  interest  of  the 
copyright  owners  being  the  same  as  that  of 
the  public  ;  but  the  former  would,  at  all 
events,  have  no  reason  to  complain,  the  addi- 
tional prolongation  being  a  very  substantial 
equivalent  for  any  curtailment  of  their  powers. 

The  grand  objection  hitherto  has  arisen 
from  an  idea,  that,  to  prolong  copyright,  was 
to  prolong  the  power  of  the  owner  to  deal 
with  the  public  as  he  chose.  Nothing,  how- 
ever, is  easier  than  to  separate  the  two,  pre- 
serving to  the  bookseller  his  property,  and 
giving  the  public  the  right  of  calling  for  edi- 
tions of  his  book,  in  the  manner  most  suited 
to  general  convenience.  This  seems  suffici- 
ently explained  in  the  above  provision;  and 
the  only  matter  of  surprise  is,  that  it  should 
not  have  been  sooner  acted  on. 

This  clause  would  put  book  property  on  so 
plain  and  equitable  a  footing,  as  to  open  a  pro- 
spect to  another  and  very  desirable  arrange- 
ment— a  community  of  copyright  between  this 
country  and  the  United  States ;  that  is,  a 
mutual  compact  that  "  the  publisher  of  a  book 
in  the  one  should  possess  the  property  of  it 


LITERARY  PROPERTY.  1^7 

also  in  the  other,"  subject  always  to  the  inter- 
ference of  a  commission  or  jury  in  each 
country,  who  should  take  care  that  it  be  given 
to  the  public  in  a  cheap  and  convenient  form. 
Its  benefit  to  authors. 
Such  is  the  plan  of  the  proposed  alteration. 
We  are  next  to  consider  its  probable  effects; 
— and  first,  as  to  literary  men.  They  cer- 
tainly feel  sore  at  the  obligation  of  sacrificing 
eleven  copies  of  every  book  to  the  public 
libraries.  A  prolongation  of  copyright  would 
go  far  to  remove  this  uneasy  sensation  ;  but 
we  would  urge  it  on  higher  grounds;  and 
here  it  is  fit  to  state,  that  our  arguments  are 
not  at  all  intended  to  favour  a  mercenary 
spirit.  Those  persons  who  write  merely  for 
money,  find,  at  present,  an  ample  stock  of 
employment,  in  compiling,  abridging,  and 
plagiarizing  ;  they  are  dead  to  the  feeling  of 
reputation;  and  incapable  of  that  judicious 
and  honourable  calculation  which  shows  that 
the  true  way  to  attain  either  fame  or  compe- 
tency, is  to  be  sparing  of  early  publications, 
to  study  in  silence,  and  to  aim  only  at  ultimate 
success.  Such  men  do  not  properly  belong  to 
literature  ;  they  have  been  cast  into  it  merely 
as  a  refuge,  and  because  its  pursuits  bear  a 
certain  connection  with  their  early  education. 
The  men  who  would  be  benefited  by  the 
change  would  be  a  very  different  class ;  they 
would  be  those  who  embrace   literature   as 


128  REMARKS  ON 

others  embrace  medicine,  law,  or  the  church, 
with  the  intention  of  following  it  as  a  profes- 
sion ;  who  make  allowance  for  the  years  that 
must  be  passed  in  unproductive  study,  and 
who  do  not  repine  at  the  postponement  of 
their  reward,  provided  it  be  not  eventually- 
withheld.  The  proposed  alteration  would 
operate  in  their  favour,  not  by  gratifying  a 
mercenary  spirit,  which  literature  never 
engenders,  and  which,  if  it  previously  existed, 
would  be  modified,  perhaps  cured,  by  such 
pursuits  ;  but,  by  enabling  the  individual  to 
pursue  his  task,  without  discouragement,  and 
without  feeling  that,  by  gratifying  his  perso- 
nal predilection,  he  is  doing  an  injury  to  his 
family.  Improve  his  circumstances,  not  that  he 
may  amass  money,  but  that  he  may  have  the 
means  of  support  during  the  long  labour  neces- 
sary to  reputation.  More  is  not  to  be  desired  ; 
the  wants  of  literary  men  are  k\v,  their  resi- 
dence,— their  plan  of  life, — their  mode  of 
bringing  up  a  family,  ought  all  to  be  such  as 
to  recall  the  philosophical  simplicity  of  former 
days. 

What  a  reproach  to  Modern  Europe,  that, 
with  all  the  benefit  of  extended  circulation  and 
the  invention  of  printing,  our  literary  compo- 
sitions should  not  have  surpassed  those  of  the 
ancients  !  Does  not  this  argue,  that  there 
must  exist  somewhere  an  unhappy  counter- 
action   to   our  advantages  ?      In   number  of 


LITERARY  PROPERTY.  129 

studious  men  we  far  surpass  the  fairest  days 
of  Greece  and  Rome  ;  but  few  of  them,  com- 
paratively, become  writers  ;  they  meet  a  deal 
of  difficulty  and  discouragement  in  their 
attempts  to  address  the  public,  and  the  result 
is,  that  their  knowledge  expires  with  them- 
selves. Such  will  be  the  case  until  an  effec- 
tual change  be  made ;  we  shall  have  the 
mortification  of  seeing  men  capable  of  enligh- 
tening the  world  and  accelerating  the  progress 
of  improvement,  doomed  to  waste  their  time 
in  teaching  pupils,  or  relinquishing  literature 
for  the  pursuit  of  professions  productive  only 
of  money.  Others  who  prefer  the  gratifica- 
tion of  their  taste  to  all  considerations  of  pro- 
perty, must  be  content  to  live  on  a  trifling 
pittance  abroad,  or  in  a  corner  of  their  own 
country,  remote  from  libraries  and  the  plea- 
sure of  literary  intercourse. 

To  make  literature  a  profession  for  life,  is 
almost  a  new  project ;  for  hardly  any  have 
set  out  with  the  intention  of  making  it  their 
sole  object.  They  have,  consequently,  pro- 
ceeded without  a  settled  plan, — have  arrived 
at  no  definite  method  until  advanced  in  years, 
and  have  seldom,  if  ever,  thought  of  drawing 
up  instructions  for  the  guidance  of  their  suc- 
cessors. Observe  in  mercantile  business,  in 
public  offices,  and  in  the  law,  how  labour  is 
methodized  and  subdivided ;  in  what  manner 
the  mechanical  and  uninstructive  part  is  made 


130  REMARKS  ON 

to  devolve  on  inferior  assistants,  and  the  time 
of  the  principal  reserved  for  general  views 
and  important  decisions.  In  literature,  any 
thing  of  the  kind  that  lias  yet  been  attempted, 
is  in  its  infancy  ;  yet  the  same  plan  is  appli- 
cable ;  and  were  authors  so  far  put  at  their 
ease  as  to  be  enabled  to  make  an  undisturbed 
apportionment  of  their  time,  they  would  soon 
learn  to  make  great  improvements  in  their 
mode  of  study. 

Its  benefits  to  Booksellers. 
In  the  present  situation  of  copyright,  a 
bookselling  house  generally  keeps  the  pro- 
perty of  a  book  till  towards  the  end  of  the 
twenty-eight  years,  when  a  sale  takes  place 
on  the  plan  of  interesting  the  trade  at  large 
in  the  preservation  of  the  property.  The 
work  is  put  up  to  auction  at  the  Chapter  Cof- 
fee-house, in  sixteenth  or  thirty-second  shares, 
and  disposed  of  to  a  number  of  different  pur- 
chasers, who  all  become  interested  in  sup- 
porting each  other,  and  in  discouraging  the 
sale  of  rival  editions,  printed  at  Edinburgh, 
Dublin,  or  elsewhere.  In  this  manner  the 
property  of  Cowper's  Poems  is  said  to  have 
been  sold  in  October,  1812,  for  £4160.  The 
shares  of  all  our  standard  writers  are  thus 
vendible,  and  for  sums  which  would  surprise 
those  who  do  not  happen  to  be  initiated  in  the 
mysteries  of  the  trade.  Hence  the  great 
cause  of  the  indifference  of  booksellers  to  the 


LITERARY  PROPERTY.  131 

question  of  prolongation,  for  they  consider 
themselves  as  enabled,  by  this  happy  expe- 
dient, both  to  bafHe  the  tyrannical  limitation 
of  the  law,  and  to  keep  within  bounds  the 
demands  of  authors.  "  At  present,"  say  they, 
"  we  are  sure  of  having  the  power  of  purchaa- 
"  ing  shares  in  any  valuable  book  property  ; 
"  our  profits,  indeed,  are  considerably  lessen- 
"  ed  by  the  cheaper  printing  of  booksellers 
"  residing  out  of  the  metropolis;  but  the 
"  extent  of  connection  of  us,  the  London 
"  traders,  is  such  as  to  give  a  tolerable  degree 
"  of  certainty  to  the  value  of  our  shares. 
"  Were  authors  assured  of  a  prolonged  term, 
"  it  is  questionable  whether  we  should  so  soon 
"  have  the  option  of  buying  copyrights  ;  at  all 
"  events,  we  should  pay  dearer  for  them." 
This  reasoning  is  plausible,  but,  like  the  gene- 
ral conclusions  of  most  practical  men,  will  be 
found  to  be  drawn  from  a  narrow  circumfe- 
rence. Whatever  be  the  duration  of  copy- 
right, the  property  of  it,  in  nineteen  cases  out 
of  twenty,  must  be  vested  in  the  bookseller. 
How  can  authors  have  the  means  of  running 
the  risks,  or  waiting  year  after  year,  the  tar- 
dy returns  of  sale?  Must  they  not  continue 
to  exchange  these  formidable  contingencies 
for  a  specific  allowance  in  the  shape  of  ready 
money?  To  write  books  is  one  thing;  to  sell 
and  to  hold  the  property  of  them  is  another. 
The  one  is  the  province  of  the  retired  and 


132  REMARKS  ON 

sedentary  student,  the  other  of  the  man  of 
activity  and  capital.     Again,  as  to  augmenta- 
tion of  price,  booksellers  would,  indeed,  in  the 
event  of  a  prolongation,  find  it  necessary  to 
increase  the  remuneration  of  good  writers  ; 
but  this  increase  would  be  repaid  them  three- 
fold in  the  augmented  value  of  their  editions, 
which  would,  in  that  case,  embrace  the  cir- 
culation,   in    all    probability,    of  the   United 
States.    Printing,  at  least  the  printing  of  Eng- 
lish copyrights,  cannot,  in  time  of  peace,  con- 
tinue  in   America,   unless  we   persist  in  our 
present  system.     Give  encouragement  to  our 
own  writers,  and  the  compositions  offered  to 
our  booksellers  will  soon  be  of  a  stamp  that 
will  rival  the  impressions  of  France,  where 
two  or  three  thousand  copies  are   struck  off 
for  one  thousand   in   England.     Observe  the 
effect  of  such   a  change   in    facilitating  the 
recovery  of  the  drawback  on  paper :  a  draw- 
back at  present  of  little  benefit  to  our  export- 
ing booksellers,  because  the  books  shipped  to 
America  are  frequently  in  such  petty  lots  as 
not  to  defray  the  expense  of  the  debenture. 
These  considerations  are  of  the  highest  im- 
portance at  a  time  when  the  re-establishment 
of  peace  and  the  commercial  activity  of  the 
continent   of  Europe,  gives  reason  to  appre- 
hend  the    printing  of  rival  editions    of  our 
standard  books  for  the  American  market. 
Cheapness  is  not  to  be  sought  by  the  infe- 


LITERARY  TROPERTY.  133 

riority  of  type  and  paper ;  but  it  would  be  tbe 
result  of  those  progressive  improvements, 
which  would  sonn  take  place  among  ns,  were 
things  left  to  their  natural  operation.  An 
increase  in  the  size  of  an  edition,  implies  the 
practicability  of  reducing  the  price  to  the  pub- 
lic. Of  the  various  benefits  arising  from 
cheapness  few  of  us  are  sufficiently  aware, 
accustomed  as  we  have  been  to  progressive 
enhancement  in  this  age  of  war  and  expendi- 
ture. It  would  enable  us  both  to  supply  the 
foreign  market  and  to  increase  greatly  our 
circulation  at  home,  by  inducing  individuals 
to  buy  books  which  they  would  otherwise 
borrow,  and  to  have  always  at  hand  those  to 
which  they  would  otherwise  only  have  occa- 
sional access. 

What  is  the  ordinary  course  of  the  business 
of  a  great  publishing  house?  A  large  propor- 
tion of  the  books  they  send  forth  pass  unno- 
ticed, and  hardly  defray  the  paper  and  print. 
What  loads  of  unsaleable  volumes  encumber 
their  warehouse  !  What  a  world  of  expense 
do  they  incur  for  unproductive  advertising! 
The  success  of  the  house  depends  on  the  very 
few  works  of  standard  merit,  (perhaps  one  in 
forty,)  which  obtain  extensive  sale,  and  form 
a  counterpoise  to  their  ill-starred  brethren. 
Now,  the  effect  of  a  prolongation  of  copyright 
would  be  to  increase  very  considerably  this 
select  number,  and  to  afford  on  a  large,  that 
12 


134  REMARKS  ON 

benefit  which  is  now  enjoyed  on  a  small  scale. 
Booksellers  have  merely  to  look  around  them 
to  see  that  those  publications  succeed  best 
where  the  encouragement  of  the  writer  is 
most  liberal.  This  has  been  strikingly  exem- 
plified in  the  principal  Reviews  and  other  con- 
junct compositions  of  the  day  ;  and  how  much 
greater  would  be  the  exertion  in  the  case  of 
a  separate  publication, — a  case  where  the  per- 
sonal fame  of  a  writer  is  so  much  more  at 
issue  1  The  expense  of  paper,  print,  and 
advertising,  are  as  great  on  a  bad  as  on  a  good 
manuscript,  and  it  would  in  time  become  a 
rule  with  our  leading  booksellers  to  publish 
none  but  first-rate  books  : — adhere  to  this, 
and  you  may  safely  dispense  with  repeated 
and  expensive  calls  on  the  public  attention, — 
the  name  of  your  house  will  do  more  than 
every  thing  else. 

Another  and  by  no  means  inconsiderable 
advantage  of  the  command  of  a  valuable  manu- 
script, is  the  power  of  obtaining,  either  in 
money  or  otherwise,  an  allowance  from  a 
French  or  a  German  bookseller  for  the  use  of 
the  English  sheets,  for  the  purpose  of  trans- 
lating,— a  point  hitherto  little  attempted,  in 
consequence  of  the  trifling  nature  of  most  of 
our  publications* 

Booksellers  complain,  and  probably  with 
truth,  of  the  vanity  and  unreasonableness  of 
authors  ;  but  the  literary  line  has  many  attrac- 


LITERARY  PROPERTY.  135 

tions,  and  whenever  you  satisfy  men  that  they 
will  not  doom  themselves  to  a  life  of  poverty 
hy  following  it,  you  may  he  assured  that  you 
will  soon  have  to  transact  with  a  very  difie- 
rent  class. 

It  is  usual  with  booksellers,  when  treating 
with  an  author  of  reputation,  to  make  their 
bargain  with  reference  to  successive  editions, 
that  is,  they  pay  a  certain  sum  for  the  first ; 
a  farther  sum  when  a  second  is  called  for; 
and  a  final  payment  on  the  appearance  of  a 
third,  generally  completes  the  purchase  of  the 
copyright.  This  plan  would  be  regularly 
acted  upon,  could  the  bookseller  have  confi- 
dence in  his  literary  contractor.  It  reduces 
the  risk  of  the  former,  while,  to  the  author,  it 
afibrds  the  gratification  of  prospect,  and  gives 
him  the  strongest  motives  to  render  his  book 
worthy,  of  permanent  favour. 

Such  is  the  state  of  the  case  as  regards  the 
elder  brethren  of  the  trade, — the  principal 
publishers;  but  we  must  address  a  few  words 
likewise  to  a  numerous,  and,  in  general,  a 
respectable  class, — the  printers  and  lesser 
booksellers.  These  persons  may  apprehend 
that  a  prolongation  of  copyright  would  prove 
a  continued  suspension  of  their  power  of  com- 
ing forward  with  cheap  editions;  hut  we  refer 
them  to  the  clause  in  the  above  sketch  of  ihe 
proposed  act,  which  might  be  so  framed  as  to 
allow  any  bookseller  who  chose  to  make  the 


136  REMARKS  ON 

speculation,  to  print  an  edition  of  a  work  on 
his  obtaining  the  assent  of  the  proprietor  of 
the  copyright,  or,  failing  that  assent,  on  his 
getting  the  sanction  of  the  committee  or  jury 
authorised  to  settle  disputed  points.  What 
sum  should  be  paid  to  the  copyright  owner, 
is  a  point  for  farther  consideration,  depending 
on  the  nature  of  the  work,  its  size,  its  popu- 
larity ;  but  the  custom  of  the  trade  would 
supply  the  proper  rules,  and  the  principle, 
once  established,  the  arrangements  would  suf- 
fer no  greater  difficulty  than  other  changes  in 
business. 

We  are  next  to  call  on  the  lesser  booksellers 
and  printers  to  take  a  comprehensive  view  of 
their  situation,  and  to  mark  that  progressive 
change  and  extension  of  the  bookselling  busi- 
ness, which  shows  that  there  is  no  ground  for 
keeping  up  ancient  jealousies,  or  for  consider- 
ing the  interest  of  one  branch  as  different 
from  that  of  the  others.  Look  back  to  the 
history  of  the  trade,  and  observe  how  it  has 
gradually,  and  without  the  aid  of  interfe- 
rence, divided  itself  into  a  variety  of  distinct 
branches.  Booksellers  combined  at  first  the 
sale  of  stationery  with  that  of  books  ;  hence 
the  Stationers' Company.  In  process  of  time 
they  relinquished,  in  great  towns  at  least,  this 
unnecessary  appendage,  and,  after  a  farther 
lapse  of  years,  divided  the  wholesale  book 
business  from  the  retail.     Progressive  exten- 


LITERARY  PROPERTY  1>H 

sion  led  next  to  a  distinction  between  the  pub- 
lishing and  the  old  book  departments  ;  and  we 
have  at  present  in  one  house,  (the  house  so 
well  known  as  the  publishers  of  Hume  and 
Robertson,)  the  example  of  an  establishment 
avoiding  all  business,  even  wholesale,  except 
what  relates  to  books  printed  for  their  own 
account,  These  subdivisions  tend  exceeding- 
ly to  facilitate  business  ;  they  cause  it  to  be 
done  both  better  and  to  greater  extent.  The 
longer  our  experience,  the  more  we  are  satis- 
fied, that  the  repetition  of  employment  is  the 
only  true  road  to  success,  and  that  we  cannot 
more  effectually  clog  our  progress  than  by 
attempting  the  conjunction  of  dissimilar  under- 
takings. The  farther  course  of  things,  parti- 
cularly under  an  extension  of  the  term  of 
copyright,  would  lead  to  the  formation  of  esta- 
blishments on  a  still  more  simple  plan  ;  some 
bookselling  houses  would  confine  themselves 
to  the  mere  management  of  copyrights,  and 
leave  not  only  the  printing,  but  the  sale,  to 
the  trade  at  large.  Such  houses  would  merely 
stipulate  a  certain  payment  for  leave  to  print 
an  edition  of  a  given  size  and  form,  and  trans- 
fer all  details  of  management  to  the  under- 
taker of  the  speculation.  Is  this  a  prospect 
calculated  to  alarm  either  the  printers  or 
minor  booksellers  ?  Does  it  not  tend  to  show, 
that  things,  when  left  to  their  natural  course, 
fall  invariably  into  their  true  channel,  and 
12* 


138  REMARKS  ON 

render  superfluous  both  the  care  of  the  legis* 
lature  and  the  by-laws  of  corporations] 
Benefit  to  the  Public. 

We  come  next  to  consider  the  interest  of 
the  public  in  the  proposed  regulations.  We 
are  not  aware,  that  there  exists  at  present 
complaints  of  books  being  capriciously  with- 
held, or  confined  to  expensive  forms.  In  the 
case  already  quoted,  Cowper's  Poems,  there 
were  on  sale  at  one  time,  and  that  before  the 
expiration  of  the  copyright,  no  less  than  five 
editions,  viz. 

One  in  8vo.  with  plates,  £l  6s. 

One  in  8vo.  without  plates,  £l  Is. 

One  foolscap  8vo.  14s. 

One  do.  of  inferior  print  and  paper,  7s. 

One  12mo.  stereotype,  9s. 

Nothing,  moreover,  can  be  clearer  to  a  man 
of  business,  than  that  the  dearer  an  edition, 
the  fewer  the  purchasers;  and  that  the  true 
plan  is  to  meet  the  demand  of  all  classes  with 
as  little  delay  as  possible.  This  we  see 
repeatedly  exemplified  in  the  case  of  new 
books,  where  an  8vo.  edition  is  brought  for- 
ward before  the  sale  of  the  4to.  is  completed  ; 
but  as  all  booksellers  might  not  be  equally 
accommodating,  the  plain  alternative  is  to 
invest  a  commission  with  explicit  powers  to 
interfere.  This  will  form  a  full  and  conclu- 
sive answer  to  those  arguments  which  Judge 


LITERARY  PROPERTY.  139 

Yates  on  the  bench,  Lord  Kaimes  in  the 
Court  of  Session,  and  Lord  Camden  in  the 
House  of  Peers,  so  strongly  urged  against  giv- 
ing what  tliey  termed  the  "continued  mono- 
"  poly  of  a  book."  These  distinguished  per- 
sons were  not  aware  of  the  difference  between 
the  preservation  of  property  and  the  continu- 
ance of  control;  they  could  not  see  by  intui- 
tion what  it  has  taken  no  small  share  of  time 
and  reflection  to  discover. 

The  existing  restrictions  as  to  the  term  of 
copyright,  tend  only  to  open  a  door  to  abuse, 
by  inducing  an  author  to  make  his  work  less 
perfect  in  the  first  instance,  on  the  plan  of 
affording  him  an  easy  method  of  renewing  the 
exclusive  property.  Gibbon  did  not  scruple 
to  write  to  his  publisher,  that  a  thorough  revi- 
sal  of  his  history  would  form  "  a  valuable 
"  renewal  of  the  copyright  at  the  end  ot  the 
"  term."*  Booksellers  follow  this  plan  avow- 
edly and  habitually  ;  and  it  is  the  remark  of 
a  very  intelligent  writer  on  the  subject  of 
copyright,  that,  unless  a  change  take  place, 
our  purest  and  best  authors  will  become  so 
disfigured  by  annotation,  and  increased  in 
price  by  increased  bulk,  that  the  early  edi- 
tions will  be  called  for.f 

*  Correspondence  from  Lausanne,  annexed  to  his 
Memoirs. 

t  Address  to  Parliament  on  the  claims  of  Authors, 
by  a  member  of  the  University  of  Cambridge,  1813. 


140  REMARKS  ON 

We  by  no  means  assert,  that  the  proposed 
change  would  stop  the  appearance  ot  trifling 
works,  since  every  man  must  be  allowed  to 
waste  his  time  and  his  property  as  he  chooses; 
but  it  would  surprisingly  increase  the  number 
of  good  books,  prompting  many,  who  are  at 
present  entirely  discouraged,  to  become  au- 
thors, and  inducing  others  who  labour,  but 
labour  with  haste,  to  give  a  finish  and  attrac- 
tion to  their  performances. 

It  is  long  since  Dr.  Johnson  pronounced  us 
"  a  nation  of  readers,"  yet  we  are  still 
extremely  deficient  in  standard  works,  and  on 
subjects  too  where  we  ought  to  have  been 
long  since  amply  supplied.  Have  we  a  good 
general  history  of  Ireland  or  Scotland,  or  even 
of  England?  No  wonder  that  we  should  still 
be  deprived  of  such  works  when  we  calculate 
the  time,  labour,  and  expense  required  in  their 
composition.  Now,  that  public  records  have 
become  so  voluminous,  and  the  transactions 
of  nations  so  complicated,  whoever  undertakes 
to  do  justice  to  such  topics  will  find  himself 
subjected  to  a  variety  of  expenses ;  he  must 
set  apart  two,  perhaps  three,  years  for  what 
apparently  requires  one  ;  he  must  have  his 
residence  in  the  vicinity  of  great  libraries; 
he  must  carry  on  an  extensive  correspon- 
dence ;  he  must  employ  clerks  in  making 
copies  of  official  documents  and  family  papers. 
The  same  observations  are  applicable  to  sci- 


LITERARY  PROPERTY.  141 

cntific  labours.  At  present,  no  bookseller  can 
aflord  to  indemnify  a  writer  for  the  years  he 
would  be  disposed  to  bestow  on  a  favourite 
but  insulated  branch — he  must  have  a  work 
on  a  subject  of  general  interest ;  that  is,  one 
which  will  take  in  a  number  of  topics,  with- 
out going  to  the  bottom  of  any.  But  prolong 
the  term,  and  afford  a  prospect  that  a  well 
written  book,  even  in  a  limited  department, 
will  make  its  way,  and  the  bookseller  will  find 
himself  justified  in  offering  to  the  author  a 
sum  which  will  enable  the  latter  to  indulge  in 
his  predilection  for  the  branch  in  question. 
This  point  is  of  great  consequence,  for  almost 
every  author  has  a  favourite  subject,  which 
he  would  cultivate  with  great  zeal,  did  not 
necessity  oblige  him  to  turn  aside  to  popular 
topics,  for  the  sake  of  a  livelihood.  We  have 
known  works  that  might  have  been  completed 
in  two  or  three  years,  postponed  from  inter- 
val to  interval,  so  as  to  occupy  seven,  eight, 
or  nine,  in  consequence  of  those  unwelcome 
avocations. 

The  more  a  man  of  taste  and  judgment 
studies  the  true  nature  of  composition,  the 
more  he  becomes  attached  to  simplicity;  he 
loses  all  relish  for  flowery  diction ;  he  learns 
to  chasten  his  early  predilection  for  ambitious 
passages  :  for  point  and  antithesis  he  substi- 
tutes the  plain  language  of  the  Grecian  and 
Roman  models.     Such  a  style  is  calculated  to 


142  REMAKES  ON 

be  permanent,  but  may  not  for  some  time  be 
popular,  perverted  as  the  public  taste  is  by  a 
habitual  tone  of  exaggeration  and  inflation. 
The  reward  of  such  writers  is  thus  to  be  found 
only  in  length  of  time.  Grant  but  this,  and 
you  will  accomplish  a  total  change  in  the  cha- 
racter of  new  books,  rendering  the  writers 
indifferent  to  whatever  may  be  called  tricks 
of  composition,  and  directing  their  attention 
to  the  plain,  the  solid,  the  permanent.  W  hat 
a  prospect  is  here  opened  both  of  improving 
our  national  style  and  of  diffusing  useful  infor- 
mation !  This  is  one  of  the  many  things 
which  show  that  the  benefit  of  one  part  of  the 
community  is  the  benefit  of  all  ;  and  that, 
whenever  we  are  enabled  to  sift  a  subject  to 
the  bottom,  and  to  view  a  question  in  all  its 
bearings,  we  find,  that  the  existing  evils  are 
the  result  of  our  own  prejudices  or  mistaken 
regulations.  We  have  treated  this  subject 
with  reference  to  four  distinct  parties; — 
authors;  publishing  booksellers;  the  lesser 
booksellers  with  the  printers  ;  and,  finally,  the 
public  ;  yet  we  challenge  any  opponent  to 
produce  a  single  point  in  which  the  advantage 
of  the  one  is  not  found  to  coincide  with  and 
promote  the  advantage  of  the  others. 

How  has  it  then  happened  that  a  case  call- 
ing so  strongly  for  amendment  has  not  hither- 
to been  fully  brought  before  the  public  ?  The 
reasons  are  the  following  : 


LITERARY  PROPERTY.  143 

Publishing  booksellers  have  been,  and  still 
are,  unconscious  of  the  improvement  which  it 
would  produce  in  literary  composition. 

The  lesser  booksellers  and  printers  were 
not  aware  of  the  practicability  of  combining 
prolongation  of  copyright  with  freedom  of 
competition. 

The  parliamentary  opponents  of  the  mea- 
sure, sucb  as  tbe  late  Lord  Camden,  were 
equally  unaware  of  the  possibility  of  the  pro- 
vision in  question. 

And  as  to  literary  men,  their  error  has 
been  partly  in  want  of  co-operation,  partly  in 
asking  too  much,  by  urging  at  once  a  claim  to 
perpetuity. 

But  is  there  now  any  prospect  of  the  adop- 
tion of  such  a  measure?  The  progress  of 
improvement  is  slow  ;  our  legislators  have  not 
leisure  to  study  such  matters  to  the  bottom, 
and  our  practical  men  are,  in  general,  wedded 
to  ancient  usage.  At  the  same  time,  there 
are  strong  reasons  to  hope,  that  the  question, 
if  taken  up  by  a  spirited  and  persevering  mem- 
ber of  parliament,  will  eventually  be  carried. 
The  universities  afford  an  encouraging  exam- 
ple. They  have  lonjj  possessed  copyright 
without  abusing  it.  Booksellers  are  begin- 
ning, particularly  since  the  peace,  to  take  a 
wider  view  of  their  business;  to  aim  at  expor- 
tation, to  lessen  their  prices,  and  to  seek  an 
equivalent    in  a    wider   circulation.      As   to 


144  REMARKS,  &C. 

authors,  their  object  is  completely  the  same 
with  that  of  the  public — extended  circulation. 
Precedent,  likewise,  is  in  favour  of  the  mea- 
sure. We  have  the  example  of  successive 
prolongations  of  copyright  in  this  country  and 
in  France;  and  a  most  encouraging  proof  of 
the  effects  of  perpetuity  in  Germany.  Final- 
ly, it  may  be  safely  urged,  that,  until  some 
such  measure  is  adopted,  the  public  will 
receive  very  few  standard  books. 


END. 


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REMINGTON   RAND  INC.    2 


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